Gross Coverage

To be fair, my title should be “Gross Coverage,” since I am referring to the sadly typical press coverage of the recently released Supreme Court decision in Gross v. FBL Financial Services (08-441), an age discrimination case under the Age Discrimination in Employment Act.

In a 5–4 opinion written by Justice Thomas, the Court held (quoting from the case’s Syllabus) that

A plaintiff bringing an ADEA disparate-treatment claim mustprove, by a preponderance of the evidence, 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.

The dissenters, let by Justice Stevens, screamed the judicial equivalent of bloody murder, and it is their dissent that is featured in most of the mainstream press coverage of the case. Typical of that coverage is an article in the Los Angeles Times by David Savage, who writes today that

The dissenters, led by the court’s senior justice, John Paul Stevens, described the ruling as “especially irresponsible” and “an unabashed display of judicial lawmaking.”

Savage himself seems quite displeased by the decision, stating in his own voice (no covering “experts said” here) that

[b]ecause workers claiming such discrimination almost certainly will not be present while their employers discuss laying them off or demoting them, analysts said, it will be extremely difficult to obtain hard evidence that age was the key factor.

He does, however, go on to quote several experts making the same point, as well as Senate Judiciary Chairman Leahy, who said that the five Justices in the majority “acted to disregard precedent and ignore the plain reading and common understanding of the statute that Congress passed to protect Americans from discrimination based on their age.”

Really? Did the majority actually disregard precedent and ignore the plain meaning and common understanding of the text? I don’t think so, but I also don’t think that most readers of Savage’s article, or a similar one by Mark Anderson in a publication from which one expects better, are given enough information to make that judgment for themselves. According to Savage, for example,

The 5-4 decision reversed a long-standing rule. Many federal appellate courts had decided that if a worker could show age was one of the factors in a layoff or demotion, then the employer was required to prove it had a legitimate reason for its action apart from age….

In discrimination lawsuits involving what lawyers call “mixed motive” cases, a worker previously might have had a valid claim of discrimination if age or another prohibited factor, such as race, was one of the motivations behind a firing or demotion.

The Court overturned “a long-standing rule”? How could they do that? Does the majority simply not like old people? The only clue in Savage’s article about how the Court could have undertaken, presumably on its own initiative or because of its own policy preferences, such a massive reversal of rule and precedent is the following:

Thomas acknowledged that Congress and the Supreme Court had authorized this approach [shifting the burden from plaintiff to defendant in “mixed motive” cases], but he said it could not be applied to age discrimination cases.

“The burden of persuasion does not shift to the employer,” he said, “even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”

In 1991, Congress amended the law covering discrimination on the basis of race, sex, religion and national origin to allow mixed-motive claims. It did not revise the age bias law. Thursday’s majority said that age, therefore, should be treated differently.

But wait a minute. Savage has Thomas “acknowledging” something that he not only does not acknowledge but specifically denies — that Congress and thus the Court have in the past “authorized” this burden shifting in age discrimination cases. It might have been useful, in short, to quote a bit more from Thomas’s Opinion such as the following from pages 5–6 (citations omitted):

Petitioner relies on this Court’s decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA….

This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII … , even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088.

We cannot ignore Congress’ decision to amend TitleVII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.

Assuming that Thomas and his majority are accurate in stating that the Court “has never held that this burden-shifting framework applies to ADEA claims,” then exactly what precedent does Sen. Leahy claim they ignored? When Savage writes, “In discrimination lawsuits involving what lawyers call “mixed motive” cases, a worker previously might have had a valid claim of discrimination if age or another prohibited factor, such as race, was one of the motivations behind a firing or demotion,” what previous Supreme Court age discrimination cases does he have in mind. Where is the “long-standing rule” written that Savage says the Court “reversed.”

Moreover, since Savage quoted with evident approval Sen. Leahy’s charge that the majority ignored the “the plain reading and common understanding of the statute that Congress passed,” it would have been helpful to present the majority’s take on that question, such as the following from page 7–8:

Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not….

The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29

U. S. C. §623(a)(1) (emphasis added [in majority opinion]).

The words “because of” mean “by reason of: on account of.” 1 Webster’s Third New International Dictionary 194 (1966)…. Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act…. To establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision….

Now it is entirely possible that the “mixed-motive” burden shifting framework obviously preferred by Sen. Leahy and the four dissenters (and I think quite obviously by journalist Savage) is better than the original version left in place by Congress in 1991. This would not be the first time that legislation Congress did not pass, wording that it did not use, is better than what it did do. But it is not the Court’s job to substitute its policy preferences for what Congress actually did or did not do, and it ill behooves Justice Stevens to accuse the majority of “an unabashed display of judicial lawmaking” for its refusal to engage in judicial lawmaking. As Justice Thomas noted in Footnote 3 (page 8) of his opinion:

JUSTICE BREYER contends that there is “nothing unfair or impractical” about hinging liability on whether “forbidden motive . . . play[ed] arole in the employer’s decision.” Post, at 2–3 (dissenting opinion). But that is a decision for Congress to make [citation omitted]. Congress amended Title VII to allow for employer liability when discrimination “was a motivating factor for any employment practice, even though other factors also motivated the practice,” 42 U. S. C. §2000e–2(m) (emphasis added), but did not similarly amend the ADEA…. We must give effect to Congress’ choice.

I think one of the main reason so many citizens view judges as super-legislators is that so many journalists write about them as though they are super-legislators. (Another, no doubt more important, reason is that so many judges and legislators, like Sen. Leahy, actually want the courts to be super-legislatures.)