Supreme Court hears arguments in age-bias case

The U.S. Supreme Court heard oral arguments recently in an age discrimination case in which the legal issues were so thorny, even a seasoned high court litigator was compelled to comment.
“The issues here are unbelievably complicated,” said Carter G. Phillips, a partner in the Washington, D.C., office of Sidley Austin arguing on behalf of the defendant in Gross v. FBL Financial Services.
“I will say [that] in 25 years of advocacy before this court, I have not seen one area of the law that seems to me as difficult to sort out as this particular one is.”
At the heart of the case are two issues: what burdens of proof the plaintiff and defendant face in age discrimination cases and what kind of evidence they must present to win in mixed-motive cases.
The plaintiff, Jack Gross, sued his employer, FBL Financial Group, under the Age Discrimination in Employment Act, claiming that he was demoted from his position as claims administration vice president to the position of claims project coordinator — which came with a lower salary grade — because he was 54.
Most of his duties were transferred to another employee in her early 40s.
A jury found in Gross’ favor and awarded him $46,945 in lost compensation.
FBL’s motion to overturn the verdict based on the absence of “direct evidence” of discrimination was denied by the trial court.
But the 8th Circuit reversed, finding that the jury instruction misstated the burden of proof.
While the jury was instructed that the plaintiff had the burden of proving age was a “motivating factor” behind the demotion and that FBL could rebut that assertion by showing it would have made the same decision regardless of age, the 8th Circuit said the plaintiff had the burden of presenting “direct evidence” of discrimination.
The court ordered a new trial. The plaintiff petitioned the Supreme Court for certiorari.
Confusing precedent
At oral arguments, the court was faced with the dilemma of interpreting the plurality decision in the 1989 Title VII case Price Waterhouse v. Hopkins (490 U.S. 228).
A majority of the justices agreed that a plaintiff must show that bias was the deciding factor in an adverse employment decision, and that a defendant can establish an affirmative defense if it can show that it would have taken the same action absent any bias.
But in dueling concurrences, justices Sandra Day O’Connor and Byron White set out competing standards for what kind of evidence must be presented.
O’Connor’s opinion stated that a plaintiff must present “direct evidence that an illegitimate factor played a substantial role in a particular employment decision.”
White, on the other hand, said that the plaintiff need only prove that bias “played a motivating part” in the adverse employment decision.
With that complicated precedent in the background, Eric Schnapper, a University of Washington School of Law professor representing the plaintiff, argued that a “direct evidence” requirement was not imposed on plaintiffs by Congress.
“This court has at no time imposed a direct evidence requirement without an affirmative directive from Congress to do so,” Schnapper argued.
Many justices, including Ruth Bader Ginsburg, tried to nail down exactly what such “direct evidence” might be.
“It wasn’t defined in Price Waterhouse,” Ginsburg said. “There is a range of views on what it means, starting from direct versus circumstantial, to something like strong evidence.”
“There is a range of views on that,” Schnapper agreed. “Our view is the burden on the plaintiff is to show [that] age was a motivating factor, but it’s not required to show it by any particular kind of evidence or to show it by strong evidence as opposed to merely evidence sufficient to establish” a discriminatory motive.
Justice David Souter tried to cut to the heart of the case.
“I take it the only issue raised before us is whether the evidence that does [create] a burden on the defendant’s part has got to be, whatever this means, ‘direct’ or not?” Souter asked.
“That’s the only issue,” Schnapper answered.
Phillips, arguing for the employer, said that the lower court relied on O’Connor’s opinion because it specifies what kind of evidence the plaintiff must show.
“The 8th Circuit said that it interpreted Justice O’Connor’s separate opinion calling for direct evidence as talking about a specific link between the proof of the discriminatory considerations and the adverse action that was taken,” Phillips said.
“As I understand the court of appeals, it said that Justice O’Connor’s opinion was the decision on the narrowest ground, and therefore [it took] that decision as the law made by Price Waterhouse,” Ginsburg said.
Phillips said he believed it was more a matter of clarity.
“The fundamental problem is, it’s just simply not clear what Justice White’s opinion means,” Phillips argued. “Therefore, the lower courts have seized upon [O’Connor’s] opinion [because it] at least provided serious guidance that they could embody into a jury instruction.”
A decision in the case is expected later this term.