Supreme Court holds: No more mixed-motive analysis in ADEA cases

July 16, 2009

Last month, the U.S. Supreme Court held that the mixed-motive burden shifting framework routinely applied in employment discrimination cases does not apply to cases brought under the Age Discrimination in Employment Act (“ADEA”). The split was the typical 5:4 split seen in many of the Court’s recent decisions.

This case has received quite a bit of publicity, most recently during Judge Sotomayor’s Senate confirmation hearings, where she was questioned about the holding and asked whether she thought it constituted “judicial activism.” In answering the question, she noted that Congress simply did not amend the ADEA as it had Title VII to explicitly provide for the mixed-motive framework. Her answer was brief, to the point, and correct.

In the Gross, the plaintiff alleged that he was demoted because of his age. Setting aside the fact that demotion is rarely a good decision on an employer’s part for a number of reasons, Gross prevailed in a jury trial under the standard that his age was a motivating factor in the employment decision, not the motivating factor. Under the mixed-motive framework, a plaintiff can prevail if he or she demonstrates that age was one of a number of factors leading to an adverse employment action. The mixed-motive burden shifting framework is triggered where there is no direct evidence of discriminatory motive. An example of direct evidence would be an email stating: “Jack is getting pretty long in the tooth so we should demote him and bring in someone younger.” Such smoking gun evidence rarely exists, so the “mixed-motive” analysis is often at play.

Essentially, the Supreme Court’s ruling means that a plaintiff in an ADEA action must now demonstrate that, but for his or her age, the adverse employment action would not have occurred. As noted, under the mixed-motive analysis, a plaintiff could prevail if age was one of a number of motivating factors leading to the adverse employment action.

Although the decision arguably benefits employers in the short term, any benefit is likely short-lived. The current makeup of the U.S. Congress and the line of questioning posed to Judge Sotomayor during her confirmation hearings may signal a Congressional “fix” on the issue. In fact, Congress already plans to hold a hearing on the decision.

The Maine Human Rights Act does not contain explicit language providing for the mixed-motive framework and it is unclear whether the courts would follow Gross or interpret the Maine law differently. In any event, whatever the decision, it would likely apply to all protected classes, not just age, given the structure of the Act. It is also possible that the Maine legislature will add language similar to that contained in Title VII to the Act before the courts are required to decide the matter.

This document was prepared by Matthew S. Raynes and Sarah E. Newell. For further information, contact Matthew S. Raynes at mraynes@eatonpeabody.com or Sarah E. Newell at snewell@eatonpeabody.com.

This paper is provided as general information, and is not a substitute for legal or other professional advice.