The Mixed-Motive TheoryIn 1989, a plurality of the Supreme Court rejected a “but for” causation requirement under Title VII and held that a plaintiff who is able to prove that a protected characteristic (e.g., sex) was a motivating factor for the employer’s challenged decision may proceed with a Title VII claim, even if the employer is able to prove that it was also motivated by other legitimate (i.e., non-discriminatory) considerations. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989). As initially formulated by the Supreme Court, the employer could escape liability under this so-called “mixed-motive” theory by proving that it would have made the same decision even if it had not considered the protected characteristic. In 1991, Congress amended Title VII to codify the mixed-motive theory announced in Price Waterhouse, except that Congress provided that a plaintiff who prevails under a mixed-motive theory may still obtain injunctive relief and recover attorney’s fees, even if the employer proves it would have taken the same action absent the impermissible consideration. In 2003, after some lower courts had limited application of the mixed-motive theory to cases involving “direct” evidence of discrimination, the Supreme Court held the mixed-motive theory was available to all Title VII plaintiffs, not just those with direct evidence of discrimination. Desert Palace, Inc., v. Costa, 539 U.S. 90, 94-95 (2003). The Supreme Court Decision in Gross In Gross, the Supreme Court granted certiorari to decide whether an ADEA plaintiff was required to present direct evidence of discrimination to obtain a mixed-motive instruction. Prior to oral argument, however, there was significant speculation that the Court would address the larger question of whether the mixed-motive theory exists at all in an ADEA case. In a 5-4 majority opinion written by Justice Thomas, the Court did just that. Focusing on the statutory differences between Title VII and the ADEA, the Court held that a mixed-motive theory is simply not available under the ADEA. Instead, an ADEA plaintiff must show that age was a “but for” reason for the challenged employment decision. Given the Court’s heavy reliance on statutory construction, it seems very likely that Congress will seek to overturn Gross by amending the ADEA to specifically permit a mixed-motive theory liability. For the moment, however, Gross represents a significant increase in the burden an ADEA plaintiff must satisfy and will undoubtedly will be cited frequently and extensively by employers in ADEA motions for summary judgment and proposed ADEA jury instructions. QuestionsThe foregoing is not intended as legal advice. If you have specific questions regarding the ADEA or any other employment-related leave law, please contact one of our attorneys. | 
