This morning, the Supreme Court issued a long awaited decision in Gross v. FBL Financial Services Inc. 557 U.S. ____ (2009). The 5-4 decision refuses to extend the "contributing factor" test to age discrimination claims. The majority opinion, by Justice Thomas, sends a strong message to Congress about its duty to be specific in revising laws. This is a message that bears on Congress' current deliberations on whistleblower laws.
Jack Gross began working for FBL Financial Services in 1971. In 2003, when he was 54-years-old, the company reassigned him from being a claims administration director, to being a claims project coordinator. At the same time, they transfered many of his former duties to a younger employee whom Gross used to supervise. Gross filed suit claiming that the transfer was a demotion imposed on him because of his age. FBL claimed it was a business reorganization that better suited Gross' skills.
The trial judge used the "contributing factor" test in preparing the jury's instructions. A divided Supreme Court created the "contributing factor" test for Title VII claims (race, gender, religion and national origin discrimination) in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), to address the burdens of proof that should apply when a claimant alleges that the employer acted with "mixed motives." If the plaintiff showed that the illegal reason was a "contributing factor" in the adverse action, then the burden shifted to the employer to show, by a preponderance of the evidence, that it would have taken the same action even without the illegal consideration. Justice O’Connor's opinion held that to shift the burden of persuasion to the employer, the employee must present “direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision.” Id., at 276. Congress then included a version of this test in the 1991 amendments to the Civil Rights Act. It does not require the employee to have "direct evidence" of the illegal reason. See 42 U. S. C. §2000e–2(m). (Direct evidence is typically a remark or admission by a decision maker that reveals consideration of the illegal motive.)
The jury returned a verdict in favor of Gross and awarded $46,945 in lost compensation. The Age Discrimination in Employment Act (ADEA) provides for liquidated damages equal to the lost pay, so Gross would have received twice that amount, plus attorney fees.
FBL appealed and the Eighth Circuit Court of Appeals in St. Louis reversed. It held that the judge erred in failing to tell the jury that they must find "direct evidence" of a mixed motive before requiring FBL to prove that it would have made the same reassignment without considering age. As Gross agreed that he had no "direct evidence" of discrimination, the Eighth Circuit ordered that Gross must prove that his age was a "determining factor" in his reassignment.
Gross appealed to the U.S. Supreme Court which agreed to hear the case. Gross asked the Court to say that circumstantial evidence is just as valid as direct evidence. Indeed, the Supreme Court has already said this in Desert Palace, Inc. v. Costa, 539 U. S. 90, 100 (2003). If a manager takes the stand to say, "I never considered that the plaintiff was black," but that manager had fired blacks for offenses that whites did with impunity, then the circumstances may speak louder than the words. For this reason, Justice Thomas wrote in Desert Place that, “Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”
The Supreme Court today has side-stepped this issue. Justice Thomas, writing for the majority, says that the "mixed motive" analysis is not part of the ADEA. "Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088." Slip opinion, p. 6. Therefore, "A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the 'but-for' cause of the challenged employer decision." Slip opinion, p. 9. Because Congress chose to amend the Civil Rights Act in 1991, and did not include the "contributing factor" test in the ADEA, victims of age discrimination can no longer use the Supreme Court's Price Waterhouse holding as a basis for jury instructions. This sets elderly victims of discrimination back more than 20 years.
Justice Thomas' opinion makes clear, though, that this constriction for age claims should not apply to whistleblowers. Justice Thomas relied on a maxim that, “negative implications raised by disparate provisions are strongest” when the provisions were “considered simultaneously when the language raising the implication was inserted.” Slip opinion, p. 6. Thus, because Congress made changes to the ADEA in 1991, but did not add the "contributing factor" test to it, the Court must not use that test in future ADEA cases. However, as Congress did not amend the whistleblower laws in the 1991 amendments, they should be unaffected. On page 11, footnote 6, Justice Thomas makes clear that this holding will not affect cases under the National Labor Relations Act (NLRA) which protects workers from retaliation for union activities. Justice Thomas said that the Court would defer to the decisions of the National Labor Relations Board (NLRB). Justice Thomas also said that the Court's decisions under the First Amendment would have no bearing on its interpretation of statutory claims. One such First Amendment decision was Garcetti v. Ceballos, 547 U.S. 410 (2006), which denied public employees protection when they speak out about a violation as part of their normal job duties. Connecting the dots, one sees that the Court has now limited Garcetti to cases in which an employee has no statutory protection and must rely only on the First Amendment.
The Court's decision today does carry an important message to Congress: don't assume that if you correct one anti-discrimination law, we will understand that you want to apply the change to other laws. Readers here may recall that Senator McCaskill (D-MO) made remarks on the Senate floor last July about how provisions in the Consumer Product Safety Improvement Act (CPSIA) were meant to express a desire by Congress to apply them to all other whistleblower protections. The CSPIA prohibits any contracts that interfere with the whistleblower's rights under the law. At 154 Congressional Record S 7876, a colloquy between Senators McCaskill and Pryor shows they want this provision to apply to other laws. Today, Justice Thomas is telling Congress to make it so explicitly. Congress can do that by passing the Arbitration Fairness Act, for example.
Congress is currently considering the Whistleblower Protection Enhancement Act (WPEA). The current drafts of this bill would apply only to federal employees and the employees of federal contractors. If Congress really means to protect all whistleblowers, it will need to pass another law extending its protections to private sector workers, and employees of state and local governments. Modern advances in whistleblower protections, such as those for nuclear whistleblowers in the Energy Reorganization Act (ERA), or transportation workers, will not benefit environmental whistleblowers who are saddled with some of the oldest whistleblower protections on the books. It is time for an overhaul.
Justice Stevens wrote a clear dissent:
Given this unambiguous his-tory, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causationrequirement in the ADEA that differs from the establishedreading of Title VII. I disagree not only with the Court’sinterpretation of the statute, but also with its decision toengage in unnecessary lawmaking. I would simply answerthe question presented by the certiorari petition and holdthat a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction.
In another decision today, District Attorney's Office for the Third Judicial District v. Osborne, No. 08-6, the Supreme Court, by another 5-4 majority, decided that criminal defendants have no constitution right to DNA evidence after they are convicted. In both cases, the majority of five is closing courthouse doors and denying relief to victims of injustice.