In a recent decision, the EEOC's Office of Federal Operations (OFO) found that the "mixed motive" analysis still applies to age discrimination cases in the federal sector, even though the Supreme Court had barred private-sector employees from using the argument in Gross v. FBL Financial Services, Inc., 557 U.S. _____, 129 S. Ct. 2343 (2009).
Under Title VII (the statute which, among other things, prohibits employment discrimination on the bases of race, color, sex, religion and national origin), an employee may use two different theories to show discrimination: "but for" causation theory (sometimes called the "single motive" theory) and the "mixed motive" theory. Under "but for" causation, an employee must show that discrimination was the single motive behind the alleged discriminatory act (such that the alleged discriminatory act would not have occurred but for the intent to discriminate). Any other possible excuse has to be shown to be pretext for discrimination. Under a "mixed motive" analysis, an employee can still prevail by showing that discrimination was one of the operative motives behind the alleged discriminatory act. While an employee's remedies are limited if "mixed motive" is shown, it allows employees to win in cases where discrimination tainted an employment decision, but was not the sole consideration in the case.
Age discrimination claims are based on a different statute than Title VII, specifically the Age Discrimination in Employment Act (ADEA). In Gross, the Supreme Court had construed the relevant provisions of the ADEA (which are phrased differently than their counterparts in Title VII) to not allow employees to recover in "mixed motive" cases, limiting age discrimination claims to those where "but for" causation could be shown.
In Alotta v. Dept. of Transportation, EEOC Appeal No. 0120093865 (June 17, 2011), Alotta, an aviation safety inspector, appealed the final agency decision on his complaint of age-discriminatory nonselection (among other claims). One of the three members on the selection panel had testified that the selecting official had made comments possibly indicative of age bias. Although OFO affirmed the result of the final agency decision, it applied a mixed-motive analysis to Alotta's age discrimination claim. The Commission noted that the selectee was only two years younger than the complainant, who did not put forth the effort of the selectee into the interview. "In the absence of any clear evidence that age was a factor in the panelists' recommendation to the selecting official, or in the selecting official's decision to concur with the interview panel's choice of the selectee, we cannot find that age played any part of the agency's decision not to select complainant for the position in question."
In doing so, OFO discounted the effects of the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. _____, 129 S. Ct. 2343 (2009), which had held that the Age Discrimination in Employment Act (ADEA) did not permit employees to use "mixed-motive" analysis. OFO cited with approval a recent federal district court decision from Texas, holding Gross's bar on use of the "mixed-motive" analysis inapplicable to federal sector cases, in that federal sector claims are covered by a different ADEA provision with different phrasing than the one interpreted by the Supreme Court in Gross. In doing so, OFO reopened the door to federal sector employees seeking relief for age discrimination claims in "mixed motive" cases.
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.