In a lawsuit filed by an Iowa executive who alleged that his employer violated the Age Discrimination in Employment Act (ADEA) by demoting him because of his age, a jury returned a verdict in his favor. His employer appealed, claiming that the jury instructions were improper. The Eight Circuit reversed, finding error in giving a mixed-motive jury instruction.
Employment discrimination lawsuits typically involve “mixed motives,” in which evidence shows that a combination of lawful and unlawful motives led to the employment decision giving rise to the lawsuit. Who prevails in these cases often depends on whether the plaintiff or the defendant bears the burden of persuasion.
In Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Supreme Court held that a plaintiff in a Title VII employment discrimination case does not have to present direct evidence of discrimination to obtain a mixed-motive jury instruction that, helpfully to the plaintiff, shifts the burden of persuasion to the defendant.
The Supreme Court decided 6/18/09 that this burden-shifting principle under Title VII does not apply to disparate-treatment cases brought under the ADEA. Employers need not bear the burden of proving that the would have taken the adverse employment action even if age were not a factor in their decision. Instead, the employee bears the burden of proving not just that age discrimination was a motivating factor, but that the adverse employment action would not have occurred but for the employer discriminating on the basis of age.
The 5-4 decision was based on the majority's reading of the specific words of the statute, which prohibits age discrimination "because of" the employee's age. By comparison, Title VII includes language that makes an employment action unlawful if race, color, religion, sex, or national origin was "a motivating factor" for the action.