Today's Wall Street Journal (online) includes an article entitled: Age Bias at Work Is Harder to Prove. I don't read the WSJ but came across the link in a blog I do read. The Supreme Court Blog uncritically characterized the WSJ article as saying that Gross v. FBL Financial Services, "requires plaintiffs alleging age discrimination to establish that their age was the sole cause of the employer’s action." Sure enough, the WSJ article quotes a "senior attorney" with the AARP as saying that the "but-for cause" standard elected in Gross is "widely interpreted as meaning the 'sole cause.'"
That infuriated me. I can understand the AARP's motives for saying this but they are wrong (more on this in a minute). The WSJ and certainly ScotusBlog should have questioned this statement by an AARP attorney (an organization that "supports the rights of older workers" by filing briefs arguing for "vigourous enforcement" of the ADEA). That is sloppy journalism.
Shortly after it was released, I wrote about what Gross means for employers. I won't repeat those statements here. I cautioned that, despite what the publicity said, the decision doesn't make it easier to discriminate against older workers. It merely simplifies the way an age claim is analyzed by a court. While it ostensibly distinguishes between a "motivating factor" and a "but for" factor most humans (including Supreme Court justices) aren't capable of making such fine distinctions about human motivation. Gross makes a meaningful difference for employers only in very close cases.
The AARP attorney is dead wrong for two reasons. "But for" does not mean "sole cause." The opinion in Gross said as much by quoting a well-known treatise on tort causation: "An act or omission is not regarded as a cause of an event if the particular event would have occurred without it.” In short, if you take away the improper motivation, would the decision have been the same. That is simply not a "sole cause" analysis. Better yet, two decades earlier two members of the majority in Gross flatly stated that "because of" (i.e., "but for") does not mean that the illegal motive "must be the sole cause of a decision before there is a Title VII violation." Price Waterhouse v. Hopkins, 490 U.S. 228, 284 (1989) (Kennedy & Scalia, dissenting).
So, employers that want to fire an older worker because they can prove some legitimate reason could be in for a costly and unpleasant litigation experience.
But the AARP attorney is actually quoted as saying that Gross was "widely interpreted" as imposing a "sole cause" standard. Assuming he was accurately quoted, that is also dead wrong. The only accurate measure of how Gross has been interpreted is by the court decisions. No court of appeals has held Gross requires a showing of "sole cause." I found several district court decisions that expressly rejected the proposition. Only one decision seems to have said that "but for" means "sole cause" in an age case. The decision, however, wasn't close so the causal standard made no difference. Under any standard, one non-precedent-setting court decision does not constitute a widely accepted interpretation.
So why did the AARP attorney argue against the interests of its members (and conversely, why am I, an employers' attorney, arguing for a less strenuous causation standard)? The AARP is engaging in fear mongering so that Congress will legislatively overturn Gross. At least one such bill has been introduced. It is a terrible bill for employers. This bill would not just apply to age claims but almost every type of discrimination or retaliation claim. Under this bill, these claims would essentially be analyzed as Title VII claims are now.
As I said before, I could care less about the supposed difference between a "but for" and "motivating factor" causation standard. I don't think there is one.
What bothers me is the mess that would be created in turning every discrimination and retaliation claim into a "mixed motive" case. Even now, some 18 years after Congress added the mixed motive claim for Title VII purposes, it continues to confuse and confound the courts and jurors. Even worse, merely saying (as the introduced bill would do) that an employee in an age case can recover when age was a "motivating factor" even if the employer would have made the same decision anyway creates a potentially irreconcilable contradiction with the numerous statutory provisions and rules relating to pension and other benefits which expressly permit age to be a factor under certain circumstances.
Employers simply do not need more uncertainty.
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