557 U.S. 167, 175 n.2 (2009)
Jack Gross began working for FBL Financial Group, Inc. in 1971. As of 2001, Gross held the position of claims administration director. In 2003, when he was 54 years old, FBL reassigned Gross to the position of claims project coordinator while transferring many of his former responsibilities to a newly created claims administration manager position. FBL assigned that new position to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. Although Gross and Kneeskern received the same compensation after the changes, Gross viewed the reassignment as a demotion because of the reallocation of his job responsibilities.
In April 2004, Gross filed suit against FBL in federal district court alleging that the reassignment violated the Age Discrimination in Employment Act of 1967. At trial, Gross introduced evidence suggesting that his age had played a role in FBL's decision. FBL defended the reassignment on the grounds that it was part of a corporate restructuring and that Gross's new position was better suited to his skills. At the close of trial and over FBL's objections, the district court instructed the jury that it must return a verdict for Gross if he proved by a preponderance of the evidence that he had been demoted and that his age was a motivating factor in the decision. The court further instructed the jury that the verdict must be for FBL if it proved by a preponderance of the evidence that it would have demoted Gross regardless of his age. The jury returned a verdict for Gross and awarded him $46,945 in lost compensation.
FBL appealed to the United States Court of Appeals for the Eighth Circuit, which reversed the district court's judgment and remanded for a new trial. The court of appeals held that the jury instructions were flawed because they permitted the burden to shift to FBL upon a showing of any evidence that age was a motivating factor rather than requiring direct evidence under the framework from Price Waterhouse v. Hopkins. Because Gross had conceded that he presented no direct evidence of discrimination, the Eighth Circuit concluded that he should have been held to the ordinary burden of proving that age was the determining factor in FBL's decision. The Supreme Court granted certiorari to review the case.
Whether the burden of persuasion shifts to the employer in an ADEA case when a plaintiff produces evidence that age was one motivating factor in an adverse employment decision?1
The ADEA requires a plaintiff to prove by a preponderance of the evidence that age was the but-for cause of the challenged adverse employment action.2 The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age even when a plaintiff has produced some evidence that age was one motivating factor in that decision.3
No. The ordinary meaning of the ADEA's requirement that an employer took adverse action because of age is that age was the reason that the employer decided to act.4 To establish a disparate-treatment claim under this plain language, a plaintiff must prove that age was the but-for cause of the employer's adverse decision.5 It follows that under section 623(a)(1) the plaintiff retains the burden of persuasion to establish that but-for cause.6 This Court has previously held this to be the burden's proper allocation in ADEA cases, and nothing in the statute's text indicates that Congress has carved out an exception for a subset of ADEA cases.7
Applying the rule to these facts, the district court erred when it instructed the jury on a motivating-factor standard with burden shifting to FBL.8 Gross presented evidence suggesting age played a role in the reassignment decision, yet the ADEA text requires but-for causation with the burden remaining on the plaintiff throughout.9
The burden of persuasion does not shift to the employer in an ADEA case when a plaintiff produces evidence that age was one motivating factor in an adverse employment decision.10
Related opinions on this issue
Joined by Justices Souter, Ginsburg, And Breyer
Justice Stevens dissented.11 He argued that the most natural reading of the ADEA's because of language prohibits adverse employment actions motivated in whole or in part by the employee's age.12 He noted that the Court in Price Waterhouse construed identical language in Title VII to permit mixed-motives claims.13
Congress ratified that interpretation when it amended Title VII in 1991.14 Stevens would have answered the question presented by holding that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction.15
Joined by Justices Souter And Ginsburg
Justice Breyer joined in the dissent.16 He emphasized that the words because of do not inherently require a showing of but-for causation when the issue is motive rather than physical causation.17 He explained that in cases involving multiple motives the plaintiff can establish that the forbidden motive played a role.18
Breyer concluded that the district court's instruction allocating the burden to the employer to show it would have acted the same way was appropriate and lawful.19
Whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the ADEA?20
No. The Court held that the burden of persuasion does not shift to the employer in ADEA cases, making a mixed-motives instruction inappropriate regardless of the type of evidence presented.23 In the facts of this case, although Gross conceded he had no direct evidence, the Court did not decide the direct evidence question because the threshold issue of burden shifting resolved the case.24
A plaintiff need not present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the ADEA because no such instruction is ever proper.25