Judicial Notebook

The Supreme Court will soon address direct evidence of age discrimination—an issue that currently divides the circuit courts.

Title VII of the Civil Rights Act makes it unlawful to discriminate based on race, color, religion, sex or national origin. Likewise, the Age Discrimination in Employment Act makes it unlawful to discriminate based on older age. In 1991, Title VII was amended to say that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice" (emphasis added).

In interpreting this Title VII amendment, the U.S. Supreme Court recently held that a jury can consider other factors aside from discrimination that may have motivated the decision, even if the plaintiff does not have direct evidence of discrimination (Desert Palace, Inc. v. Costa, 539 U.S. 90, 2003).

The question now before the court (Docket No. 08-441) is whether a plaintiff who brings forth an age-discrimination case may also have a mixed-motive jury instruction when there is no direct evidence of age discrimination. In the case, Jack Gross had worked for the same insurance company for many years. He argued at trial that he was demoted because he was older and his former position was effectively given to a younger employee. After receiving a mixed-motives jury instruction, the jury awarded Gross $46,945 in lost compensation. His employer appealed the use of the jury instructions because Gross lacked direct evidence of age discrimination. The 8th Circuit agreed with the employer and remanded for a new trial. Gross then appealed to the U.S. Supreme Court.

The Supreme Court must now decide if mixed-motives jury instructions are also appropriate in age-discrimination cases in which there is no direct evidence of impermissible discrimination. An additional complication arises because the Age Discrimination in Employment Act was not amended to include the mixed-motivation rationale the way Title VII was amended in 1991.

Why would it be important for the jury to receive mixed-motives jury instructions in such cases? Even more than racial or gender discrimination, age discrimination in the workplace may be harder to demonstrate as the sole factor in employment decisions because of the generally accepted stereotype that equates older age with employment incompetence. In fact, meta-analyses examining ageist attitudes have demonstrated that although objective measures of work performance show no age difference, subjective employer ratings do (David Waldman, PhD & Bruce Avolio, PhD, 1986). Recent empirical work by Deborah Rupp, PhD, and colleagues (2006) further suggests that the relationship between employee age and job performance recommendations is moderated by the recommender's attitudes towards age. This suggests that when an employer evaluates an employee's work performance, an employer's bias can lead him or her to perceive poor work performance.

Due to the social acceptance and prevalence of ageism, age discrimination is often viewed as less harmful than racism or sexism. However, ageism does have detrimental effects. Such negative treatment is associated with decreased performance, decreased self-efficacy, increased health risks, decreased employment satisfaction and decreased employment involvement. Research also suggests that ageism can lead to self-fulfilling prophecies because older workers who face aging stereotypes often exhibit more stereotype-consistent behaviors.

Psychologists may help by continuing to research age stereotypes within employment settings and informing the courts how stereotypes can influence an employer's decision to fire or demote an older employer for reasons other than the employee's age, which at first glance may seem justifiable.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).