Ignoring precedent, the Court’s own rules, and the language chosen by Congress in enacting a ban on age discrimination, the Supreme Court today eliminated something called “mixed motive” suits against employers who discriminate against older workers. The practical effect of today’s 5–4 decision in Gross v. FBL Financial Services is that many older Americans must learn to read their boss’ mind or they will be utterly powerless against age discrimination in the workplace.
Employment discrimination cases are difficult to prove because the plaintiff ultimately must show what their boss was thinking at the time they were fired or demoted — it is illegal for an employer to fire a worker because they think the worker is too old or too black or too female, but not because they think the worker is incompetent or poorly dressed. Since workers don’t have ESP, the Supreme Court long ago put certain procedures in place to make sure that laws banning discrimination amount to more than just empty promises.
“Mixed motive” suits are an example of these procedures. To win a mixed motive case, a plaintiff had to prove that discrimination was one of the reasons behind their boss’ decision to fire or demote them. It was then up to their boss to prove that they would have made the same decision regardless of the worker’s race or gender or age. Workers are spared the nearly impossible task of having to prove that that their boss was thinking only of bigotry when they lashed out at their employee; and employers are given a fair chance to prove that discrimination is not the real reason why the worker was cast aside.
But today’s decision eliminates such claims in age discrimination cases. Thanks to Justice Thomas’ majority opinion, victims of age discrimination are helpless unless they can get inside their boss’ head and show that their boss would have behaved differently if the victim had been a little younger.
As Justice Stevens explains in dissent, Thomas’ decision isn’t just a huge blow to older Americans, it also shows “utter disregard for our precedent and Congress’ intent”:
The ADEA provides that“[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise dis-criminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” As we recognized in Price Waterhouse when we construed the identical “because of” language of Title VII, the most natural reading of the text proscribes adverse employment actions motivated inwhole or in part by the age of the employee.
In other words, the Supreme Court has traveled this road before, and it didn’t wind up where Thomas takes the country today. The federal statute banning age discrimination uses the exact same language as the federal statute banning race and gender discrimination, but Justice Thomas seems to think that those same words suddenly mean something very different.
For his part, Thomas is quite candid in explaining why he suddenly feels free to disregard decades of precedent: “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” Translation: the right-wing controls the Court now, so we’ll do whatever we want.