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Written Testimony of Michael Foreman Director, Civil Rights Appellate Clinic Pennsylvania State University Dickinson School of Law

Meeting of November 17, 2010 - Impact Of Economy On Older Workers


Chair Berrien and Commissioners, good morning and thank you for allowing me the privilege of speaking to you today regarding the Supreme Court's decision in Gross v. FBL Financial Services, Inc.(1) and the implications that decision has had on an employee's right to work free from age discrimination in the workplace.

My name is Michael Foreman. I am the Director of the Civil Rights Appellate Clinic at the Pennsylvania State University Dickinson School of Law where I also teach an advanced employment discrimination course. I have represented both employers and employees in through all phases of employment discrimination claims. It is from this broad perspective that I provide my testimony.(2)

The issue decided in Gross goes to the heart of the meaning of our country's law that prohibits age discrimination in the workplace. The decision leaves us with the question of what is the tolerable level of age discrimination that our society, and by extension Congress, is willing to permit? Many, myself included, believed the answer was clear – none. However, the Supreme Court's decision in Gross eliminated one common method of proving discrimination, making it increasingly difficult for those who are victims of age discrimination to prove their claims. After Gross, many cases, which would have been determined by a jury, are dismissed by the courts at summary judgment.

The consequences of the Gross decision have been far-reaching. First, Gross treats age discrimination differently than the protections offered under Title VII. It relegates victims of age discrimination to a second-class status and sends a disturbing message that some age discrimination is permissible as long as it is not the "but for" cause of the adverse employment decision. Second, Gross has elevated the level of proof that victims of age discrimination must provide in order to have their claims heard by a jury. Although, in theory, Gross rejects a direct evidence requirement, in its application, the level of evidence now required of a victim of age discrimination approaches a direct evidence showing. Finally, lower courts are applying the Gross statutory interpretation analysis to other anti-discrimination statutes, frequently to the detriment of protected employees.


In Gross, the plaintiff claimed that his employer, FBL Financial, engaged in ADEA-prohibited age discrimination. The district court, instructed the jury to enter a verdict for Gross if he proved, by a preponderance of the evidence, that his age was a motivating factor in the demotion,(3) but to return a verdict for FBL if the company proved that it would have demoted Gross regardless of his age.(4) A jury found that Mr. Gross's age was a motivating factor in FBL's decision to demote him and awarded damages.(5)

On appeal, the Eighth Circuit reversed, remanded, and held that the district court erred in its a mixed-motive jury instruction because it deviated from the standard established in Price Water House v. Hopkins .(6) This standard shifts the burden of persuasion to the employer only if the plaintiff presents "direct evidence" of age discrimination.(7) Gross petitioned for certiorari on the narrow issue of whether ADEA cases required a showing of direct evidence.(8)

In a 5-4 decision, the Supreme Court held that a mixed-motive jury instruction is never proper under the ADEA. Relying on Congress's use of "because" in the statute, the Court reasoned that the plain meaning of the ADEA's language requires a plaintiff to show that his or her age was the "but-for" cause of the employment decision.(9) Accordingly, even when a plaintiff produces evidence that age was a motivating factor in the employer's decision, the burden of persuasion will not shift to the employer.(10) This conclusion allowed the Court to bypass the petitioner's question of whether plaintiffs must present direct evidence in order to obtain a burden-shifting instruction.(11)

The Court remanded the case to the Eighth Circuit, which in turn remanded for a new trial. Seven years after FBL unlawfully demoted Mr. Gross and six years after he filed his ADEA claim in federal court, Mr. Gross is still litigating his claim.


In order to fully understand Gross's impact, one must first acknowledge that victims of employment discrimination inherently face an extremely high burden in prevailing on their claims of workplace discrimination. To demonstrate, one recent analysis of an employee's success rate in the federal courts found that more than 40 percent of plaintiffs either have their cases dismissed or lose at summary judgment.(12) The study further found that only 6 percent of those filing employment discrimination lawsuits in federal court go to trial, where their chances of winning are 1 in 3.(13) Victims of employment discrimination carry a heavy burden in attempting to prove their cases at trial, especially when compared to the success rates of plaintiffs in other types of civil claims.(14)

Disturbingly, even if an employee manages to prevail at the trial level, the employee still faces an uphill battle to hold on to that win. Professors Kevin M. Clermont and Stewart J. Schwab have studied how effective employees in employment claims are at maintaining favorable jury verdicts.(15) The results of this study indicate that even when an employee wins at trial, the appellate court will reverse the jury verdict in about 41% of those cases. In contrast, when the employer wins before the district court, it will face a reversal rate of only 8.72%. In short, the chances of a plaintiff retaining a favorable verdict on appeal are approximately the same as correctly calling heads in a coin flip – 50%. Because of this, the authors of the study have concluded that this discrepancy "raises the specter that appellate courts have a double standard for employment discrimination cases, harshly scrutinizing employee victories at trial while gazing benignly at employer victories at trial." (16)

It is against this stark reality that the impact of Gross must be analyzed. Prior to Gross, plaintiffs faced an uphill battle in discrimination claims. Because Gross eliminated one method of proving age discrimination, plaintiffs now find it even more difficult. Consequently, Gross means that many plaintiffs will never see their day in court.

A. Gross Sends the Dangerous Message that Some Level of Age Bias is Acceptable

The Gross opinion makes it clear that some discrimination on the basis of age is acceptable. However, Congress has never stated or implied that age discrimination is any less pernicious than discrimination against other protected groups. And they clearly have not said, for example, that a little bit of race or sex discrimination is acceptable. Rather, the idea was to take consideration of these classifications out of the employment decision making process. Similarly, Congress has never stated that an age discrimination victim must produce more evidence of bias than, for example, a victim of race discrimination. Yet, these are the decision's implications.(17) Immediately, courts recognized that Gross has made it more difficult for plaintiffs to establish age discrimination under the ADEA.(18) Prior to Gross, the courts had interpreted the anti-discrimination laws as providing similar and consistent protection to victims of discrimination—regardless of the protected class. However, after Gross, this consistency is no longer true.

B. Gross Has Implicitly Resurrected the Direct Evidence Standard

The well-established McDonnell-Douglas burden-shifting framework allows a plaintiff to prove a case based solely upon circumstantial evidence.(19) Indeed, the Supreme Court has explained that it was designed to assure a plaintiff has 'his day in court despite the unavailability of direct evidence."(20) Mixed motive analysis on the other hand developed to allow a plaintiff to bring a claim when both a legitimate and illegitimate motive were in play.(21)Gross, however eliminated the plaintiff's ability to prove his or her case through a mixed-motive analysis. Further, because the Court explicitly questioned the relevance of the McDonnell-Douglas framework in ADEA cases, lower courts are revisiting whether the McDonnell-Douglas framework applies to ADEA claims at all.(22)

While the lower courts continue to apply the McDonnell-Douglas framework, the practical impact of Gross is that courts are now requiring plaintiffs to put forward extremely compelling evidence of age bias – often resembling a direct evidence standard – in order to survive summary judgment. The employer community argues that post-Gross ADEA plaintiffs can and have survived summary judgment. While this is obviously true, they ignore the level of evidence required for these claims just to survive summary judgment. In many of these cases, the evidence produced by the plaintiffs was so compelling that it was indistinguishable from what is commonly understood to be direct evidence of discrimination. The following cases demonstrate this point:

  • Baker v. Silver Oak Senior Living Management Company , 581 F.3d 684 (8th Cir. 2009) – The Eighth Circuit overturned the district court's granting of summary judgment for the defendant because the plaintiff had presented sufficient evidence that a reasonable jury could conclude that the defendant's bias was a "but-for" cause of the decision. The evidence presented by the 53-year-old plaintiff included: supervisor's statements telling her to change h er appearance because she "dressed like an old lady" and to keep up with two younger employees. The evidence also showed that the plaintiff's supervisor teased her about her poor hearing and slow walking gait, directed the plaintiff to fire older employees so that she could hire "young workers" and stated that the management should "try to consider hiring younger people" and get rid of "dead wood." Id. at 688.
  • EEOC v. TIN Inc. , 349 Fed.Appx. 190 (C.A.9 (Ariz.) 2009) (trial opinion 2008 U.S. Dist. LEXIS 43193 * 23 (D. Ariz. June 2, 2008)) – The Ninth Circuit overturned the district court's granting of summary judgment for defendant and found the evidence was sufficient to permit a jury to find that bias was a "but-for" cause of employment decision. The supervisor had publicly remarked that "older employees should move on," had conversed about "replacing older employees," had explicitly used age as a proxy for "energy, health, vitality" and creativity, had explained that he was "replacing older employees," had referred to his business as a "young man's game," and had stated that "an old dog does not learn new tricks." Id.
  • Mora v. Jackson Memorial Foundation, Inc. , 597 F.3d 1201, 1202 (11th Cir. 2010). The Eleventh Circuit overturned a district court's pre-Gross granting of summary judgment for the defendant, finding that the evidence, even in a post-Gross framework, could have supported a jury's conclusion that bias was the "but-for" cause of the employment action. In Mora, a supervisor/decisionmaker said to the plaintiff, "You are very old, you are very inept . What you should be doing is taking care of old people. They really need you. I need somebody younger that I can pay less and I can control." The supervisor/decisionmaker had also stated that the plaintiff "[was] too old to be working here anyway." Id. at 1203.
  • Marlow v. Chesterfield County School Bd., 2010 U.S. Dist. LEXIS 117204 (E.D. Va. Nov. 3, 2010) – The Eastern District of Virginia denied summary judgment for the defendant based on indirect evidence that employer's decisionmakers may have correlated age with technological skill. Evidence showed that the decisionmakers had questioned whether older employees possessed "21 st century skills," had prepared a presentation that distinguished between "digital natives" and "digital immigrants" – adistinction resulting from when a person was born relative to technology. Evidence also showed that when layoffs were required, the decisionmakers had eliminated both the most senior and the oldest technology educators – citing "lack of technology skills." One of these "technology skills" was the use of Auto CAD, however, one of the youngest educators did not teach Auto CAD yet was retained by the employer. Id. at *20-24.

These cases, fairly characterized, contain a "smoking gun" proving the employer's bias. Thus, if these cases support any conclusion, it is that a plaintiff with very compelling evidence will be able to survive summary judgment. These cases tell us nothing about how Gross's "but-for" standard affects the typical age discrimination in which the plaintiff adduced less compelling evidence during the pre-trial stage. The ADEA should not require a "smoking gun." For the foregoing reasons, however, it is difficult to see how after Gross an age discrimination plaintiff could prevail without this compelling evidence.(23) The impact of Gross thus is inconsistent with Desert Palace, Inc. v. Costa,(24) where the Court flatly rejected the notion that circumstantial evidence is any less probative than direct evidence.(25) In sum, Gross does little to further the ADEA's purpose: to end discrimination.

C. Gross's Impact on Other Anti-Discrimination Statutes

Gross has not only impacted lower courts' analysis of the ADEA, but has also impacted their analysis of other anti-discrimination statutes as well. Because of Gross's statutory interpretation analysis, many courts have revisited, or are revisiting the proper causation standards in other anti-discrimination statutes—statutes that Congress has charged the EEOC with enforcing. Although the true impact of Gross will take time to fully emerge, in the short time since the decision was rendered, several cases foreshadow Gross's impact on other anti-discrimination statutes.(26)

For example, the Seventh Circuit recently applied the Gross rationale to the Americans with Disabilities Act (ADA). In Serwatka v. Rockwell Automation Inc., the court expressly relied on Gross and held that a plaintiff must prove that the disability was more than a motivating factor to establish liability.(27) The court reasoned that "the importance that the court [in Gross] attached to the express incorporation of the mixed-motive framework in Title VII suggests that when another anti-discrimination statute lacks comparable language, a mixed-motive claim will not be viable."(28) Additionally, the Second Circuit in Bolmer v. Oliveira expressed doubts about whether a mixed-motive theory applies to the ADA.(29) Although the applicability of Gross to the ADA remains an open question in several circuits, some district courts have relied on the Gross and the Serwatka decisions to apply Gross to the ADA.(30)

Additionally, in Crouch v. JC Penney Corp., Inc., the Fifth Circuit recognized that Gross raised the issue of whether a mixed-motive framework ever applies outside of the Title VII context.(31) Then, in Smith v. Xerox, the Fifth Circuit considered whether Gross impacted circuit precedent in Title VII retaliation cases.(32) A 2-1 majority held that Gross did not apply to retaliation claims under Title VII. The dissent, however, argued that the Serwatka reasoning was persuasive and insisted that the Gross standard must be applied in Title VII retaliation cases.(33) The dissent also reasoned that the majority's distinction between Title VII and the ADEA was "lame" because the principles that came out of Gross were uniform and that it made no sense to distinguish between statutes with identical language.(34) These cases indicate that Gross has caused confusion and has forced courts to revisit precedent, in which has resulted in increased litigation and a heavier burden on plaintiffs.


Gross has significantly altered the legal framework for proving discrimination under the ADEA. Plaintiffs now face novel requirements in the pleading stage, unpredictable summary judgment standards, and onerous burdens at trial. After Gross's elimination of a common method of proving discrimination , the plaintiff's burden for a Title VII claim is high – ultimately preventing potentially legitimate claims of discrimination from ever reaching a jury. The resulting decisions have indirectly resurrected the direct evidence standard. Furthermore, Gross has had a detrimental effect for claimants in litigation of similar civil rights statutes. The Gross decision has restricted access to the courts for plaintiffs who seek relief from employment discrimination, and the consequences of this decision have been far-reaching. Ultimately Congress will have to restore the Nation's promise to older workers of the right to work free from all age bias. In the meantime, the EEOC will have to be especially vigilant and proactive in its litigation and amicus participation if it is going to help curtail the harmful impact of the Gross decision.


1. 129 S. Ct. 2343 (2009).

2. A biography is attached to these remarks.

3. Id.

4. Id. at 2344-45.

5. 129 S. Ct. at 2347.

6. 490 U.S. 228 (1989).

7. Id .

8. 129 S. Ct. at 2348.

9. Id . at 2351.

10. Id . at 2352.

11. Id . at 2351, n.3.

12. Laura Beth Nielsen, et al , Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States , 7 J. Empirical Legal Stud. 175 (2010).


14. One study revealed that plaintiffs in employment cases succeed in only 18.7% of the cases tried before a judge, which is significantly less than the 43.6% success rate for plaintiffs in judge-tried insurance cases and the 41.8% success rate for plaintiffs in judge-tried personal injury cases. Michael Selimi, Employment Discrimination and the Problems of Proof: A Symposium: Why are Employment Discrimination Cases So Hard to Win?, 61 LA. L. REV. 555, 558 (2001).

15. Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. & Pol'y Rev. 103 (2009).

16. Kevin M. Clermont & Theodore Eisenberg, Plaintiphobia in Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments, 2002 U. ILL. L. REV. 947 (2002).

17. To illustrate, a plaintiff suing for race discrimination may show a violation of the law by showing that race was a motivating factor in the employer's decision. An ADEA plaintiff, however, must prove more: that age was a but-for cause of the employment decision. Simply showing that age was a motivating factor is not enough.

18. "In the wake of [Gross] it's not enough to show that age was a motivating factor. The Plaintiff must prove that, but for his age, the adverse action would not have occurred." Martino v. MCI Commc'ns Servs., Inc., 574 F.3d 447, 455 (7th Cir. 2009); Kelly v. Moser, Patterson & Sheridan, LLP, 348 F. App'x 746, 751 (3d Cir. 2009) ("[A]t most age was a secondary consideration in the law firm's decision, not a determinative "but for" factor. This is insufficient under Gross."); Anderson v. Equitable Res., Inc., No. 08-952, 2009 LEXIS 113256, at *45 (W.D. Pa. Dec. 4, 2009) ("[T]he [ADEA] plaintiff must show that age discrimination was the determinative reason, the 'but-for' cause,' of his termination, not just one of a number of motivating reasons.").

"[T]he 'burden of persuasion does not shift to the employer to show that they 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.'" Geiger v. Tower Automotive, 579 F.3d 614 (2009) (quoting Gross at 2352).

Pursuant to the Supreme Court's recent decision in Gross v. FBL Financial Services, Inc., a claimant bringing suit under the ADEA must demonstrate that age was not just a motivating factor behind the adverse action, but rather the 'but-for' cause of it. Title VII, on the other hand, does authorize a 'mixed-motive' discrimination claim. Leibowitz v. Cornell Univ . , 584 F.3d 487, 498, n.2 (2d Cir. 2009).

"Before the Supreme Court's decision in Gross, 'the employee could prevail if the evidence, viewed in the light most favorable to the plaintiff, would permit a jury to find that her dismissal was motivated at least in part by age discrimination.' Gross changed 'the latter part of this formulation by eliminating the mixed-motive analysis that circuit courts had brought into the ADEA from Title VII cases.'" Philips v. Pepsi Bottling Group, 2010 U.S. App. LEXIS 8391, at *7 (10th Cir. 2010)(quoting Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)).

19. The Court established the framework decades ago to help sort through the difficult task of determining discriminatory intent in employment cases. McDonnell Douglas Corp. v. Green , 411 U.S. 792,802(1973) (establishing the burden-shifting framework); Tex. Dep't of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981) (elaborating on the burden-shifting framework established in McDonnell Douglas); Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143(2000) (assuming arguendo that the McDonnell Douglas framework applies to an ADEA claim and applying it to such a claim "[b]ecause the parties do not dispute the issue").

20. Trans World Airlines, Inc.v. Thurston, 469 U.S. 111, 121 (1985).

21. Price Waterhouse v. Hopkins , 490 U.S. 228, 260(1989).

22. See Woods v. The Boeing Co. , 355 F. App'x 206, 212 (10th Cir. 2009) (Concurring opinion questions whether post-Gross,McDonnell-Douglas framework is still the standard for ADEA claims); Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (Gross merely held that shifting the burden of persuasion to the defendant is improper, therefore the McDonnell-Douglas framework of shifting the burden of production to the defendant is not prohibited and may be applied to ADEA claims).

23. Equally troubling are the opinions that have interpreted Gross to mean that age-discrimination must be the sole discriminatory cause of the employer's action. SeeCulver v. Birmingham Board of Education, 646 F. Supp. 2d 1270 (N.D. Ala. 2009).

24. 539 U.S. 90 (2003).

25. Id . at 100 (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17 (1957))("The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.'")

26. For a more detailed discussion of Gross's impact on anti-discrimination and other laws, see Michael Foreman, Gross v. FBL Financial Services—Oh So Gross !, 40 U. Mem. L. Rev. 681, 695-98 (2010).

27. Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (7th Cir. 2010).

28. Id. at 961.

29. Bolmer v. Oliveira, 594 F.3d 134, 148 (2nd Cir. 2010).

30. See Ross v. Independent Living Resource of Contra Costa County, 2010 WL 2898773, *6 (N.D. Cal. 2010) (concluding that "the standard enunciated in Gross-requiring a plaintiff to prove 'but-for' causation in a mixed-motive case under the ADEA in lieu of the Price Waterhouse framework-must also apply to the ADA."); Warshaw v. Concentra Health Services, 2010 WL 2470881, *14 (E.D. Pa. 2010) (holding based on the ADA retaliation provision's use of "because," "Gross bars mixed-motive retaliation claims under the ADA); Cottrell v. J&D Discount Liquor Gallery, Inc., 2010 WL 3906786, *6-7 (D.N.J. 2010) (recognizing the confusion over whether mixed-motive applies to ADA retaliation claims following Gross and asking parties to file briefs on the issue).

31. Crouch v. JC Penney Corp., Inc., 337 F. App'x 399 (5th Cir. 2009).

32. Smith v. Xerox, 602 F.3d 320 (5th Cir. 2010).

33. Id. at 337.

34. Id.