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Mixed-motive under the ADEA
May 16, 2008 by Ross Runkel at LawMemo
Gross v. FBL Financial (8th Cir 05/14/2008) holds that in ADEA cases the 1989 decision in Price-Waterhouse v. Hopkins, 490 US 228, controls how the jury should be instructed regarding the employer's mixed-motive.
It is error to use the Title VII "motivating factor" test that was added to Title VII (but not added to the ADEA) by the Civil Rights Act of 1991: 42 USC Section 2000e-2(m).
Gross sued the employer, asserting an age discrimination (discriminatory demotion) claim under the Age Discrimination in Employment Act (ADEA). Gross prevailed after a jury trial, but the 8th Circuit reversed.
In Price-Waterhouse v. Hopkins, 490 US 228 (1989), a plurality of the United States Supreme Court set forth the analysis applicable to "mixed motive" cases. Justice O'Connor's concurring opinion in that Title VII case is generally seen as the controlling opinion setting forth the governing rule of law.
Under that analysis, in order to be entitled to a mixed-motive jury instruction, an employee must produce "direct evidence."
Subsequently, Title VII was amended by the Civil Rights Act of 1991 via the addition of 42 USC Section 2000e-2(m). Section 2000e -2(m) superseded Price-Waterhouse by making "motivating factor" (rather than "direct evidence") the touchstone for mixed-motive analysis for Title VII discrimination cases.
The 8th Circuit held that "Section 2000e-2(m) does not apply to claims arising under the ADEA." The court reasoned that "[b]y its terms, the new section applies only to employment practices in which 'race, color, religion, sex, or national origin' was a motivating factor." The court noted "[w]hen Congress amended Title VII by adding Section 2000e-2(m), it did not make a corresponding change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act."
Because the jury in Gross' case was instructed consistent with Section 2000e-2(m) rather than Price-Waterhouse, the 8th Circuit reversed.
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