1. Do you agree with the Dissent that the majority opinion in Gross completely alters the burden-shifting framework adopted in Price Waterhouse?

2. Is the Gross opinion likely to make recovery by employees more difficult in age discrimination cases, as many commentators have suggested?

3. Appellate court decisions subsequent to Gross have drawn a distinction between a burden of proof, which does not shift, and a burden of production, which does. In your opinion, what is the difference and how is it relevant to the employee’s age discrimination case?

Issue: Does the burden of persuasion ever shift to the party defending an alleged mixed-motives discrimination claim brought under the ADEA? Does an employee have to present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?

Facts: When Gross was 54, he was reassigned from his position at FBL Financial Services. His previous position was renamed and given to a younger employee whom Gross had previously supervised. Although his pay remained the same, Gross considered the change a demotion and sued FBL for age discrimination. Gross introduced evidence at trial that the decision was at least partly based on age. FBL’s defense was that the move was part of a restructuring and that the new position was a better fit for Gross’ skills. The trial court gave the jury an instruction that it should find for Gross if it found that “age was a motivating factor.” It also instructed the jury that it should find for FBL if it found, by a preponderance of the evidence, that FBL would have demoted him regardless of age. The jury found in Gross’s favor and FBL appealed. The 8th Circuit reversed the decision and sent the case back for trial. The U.S. Supreme Court reviews the 8th Circuit’s ruling.

Decision: The Price-Waterhouse interpretation of Title VII does not apply to the ADEA. Therefore, a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence (or 50% plus a feather, some might say), that age was the “but-for” cause of the challenged adverse employment action. 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.

Dissent: The Court’s resurrection of the ‘but-for’ causation standard is unwarranted. In light of the Price-Waterhouse rejection of this standard when interpreting the same language in Title VII, it is inappropriate for the Court to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of causation in Title VII.