Gross v. FBL Financial Services, Inc.: Time to Apply the “But For” Burden of Proof to FCRA Discrimination Claims
The Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), should significantly impact an employee’s burden of proof in establishing a claim of discrimination under the Florida Civil Rights Act (FCRA). In Gross, the Supreme Court held that to establish employer liability for age discrimination under the ADEA in a disparate treatment action, a plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the “but for” cause of the challenged employer action.1
In reaching this decision, the Court focused on the text of the ADEA, which provides, in relevant part, that “[i]t shall be unlawful for an employer. . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s age.”2 Applying the ordinary meaning of the phrase “because of,” as defined by various dictionaries, the Court concluded that the phrase requires that an employee prove that age was “the reason” (as opposed to merely a “motivating factor,” i.e., a factor that plays merely a “part or a role” in the decision) for the challenged employment decision.3 Indeed, the Court expressly rejected the employee’s attempt to utilize the “motivating factor” standard set forth in Title VII.4
Importantly, the phrase “because of,” which is included in the ADEA, is not the sole standard in Title VII. Although it is included in the original textual language of Title VII,5 the Civil Rights Act of 1991 amendments expressly established a bifurcated standard of causation. Title VII authorizes discrimination claims in which an improper consideration was a “motivating factor” for an adverse employment decision.6 Requiring that an employee prove that a protected characteristic was a “motivating factor,” as opposed to the “but for” cause of the challenged employer decision, is an easier burden of proof for the employee to meet.7
Historically, courts have stated that discrimination claims under the FCRA should be governed by the same legal standards applicable to Title VII claims because the FCRA is patterned after Title VII.8 Likewise, courts have indicated that claims for disability discrimination under the FCRA should be governed by the same legal standards applicable to the ADA.9 Courts also have recognized that age discrimination claims asserted under the FCRA should be analyzed using the same framework as claims asserted under the ADEA.10 Notwithstanding these broad propositions, no court appears to have specifically examined the narrow issue of whether the “but for” standard applies to all claims of discrimination under the FCRA.
Not surprisingly, the Southern District of Florida, in Liles v. Stuart Weitzman, LLC, 2010 WL 2490944 (S.D. Fla. 2010), applied Gross in concluding that an employer was entitled to a summary judgment on an ADEA and FCRA claim of age discrimination because the employee failed to present sufficient evidence that his age was the “but for” cause of his termination. In reaching this conclusion, the Southern District relied on the general proposition that “[a]ge discrimination claims asserted under the FCRA are analyzed using the same framework as claims asserted under the ADEA.” Although the court discussed Gross, it made no mention of how the text of the FCRA might support its decision.11
Based on the Supreme Court’s decision in Gross and an examination of the text of the FCRA, a bright-line rule should be drawn requiring employees to meet the “but for” standard of proof, not the “motivating factor” standard, in attempting to establish a discrimination claim under the FCRA. To begin with, the text of the FCRA is identical to the ADEA with regard to the phrase “because of.” The text of the FCRA provides in pertinent part: “Any violation of any Florida statute making unlawful discrimination because of race, color, religion, gender, national origin, age, handicap, or marital status in the areas of…employment…gives rise to a cause of action for all relief and damages described in §760.11(5).”12 It also provides: “It is an unlawful employment practice for an employer: (a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.” (emphasis added).13 Notably absent from the FCRA is any mention of the “motivating factor” phrase set forth in Title VII. Indeed, nothing in the text of the FCRA provides any support for the proposition that the “motivating factor” standard should be the employee’s burden in attempting to establish an FCRA discrimination claim.
An examination of Florida case law provides further support for this position. The FCRA is a “stand-alone” statutory scheme specifically designed to address civil rights violations.14 In Gallagher v. Manatee County, 927 So. 2d 914 (Fla. 2d DCA 2006), the Second District examined the text of the FCRA in holding that the plaintiff’s attorneys’ fees, costs and expenses, compensatory damages, and back pay award were collectively subject to the limitation on the “total amount of recovery” provided for in F.S. §760.11(5), which by reference adopts the monetary cap in F.S. §768.28(5). After examining the text of these statutory provisions, the court concluded that the “plain meaning” of the phrase “total amount of recovery” in §760.11(5) requires that it include all forms of monetary relief, including attorneys’ fees and costs. Similar to the Supreme Court in Gross, the Gallagher court pointed to the dictionary definition of the term “recovery,” which it found to be broad and comprehensive.15
In an effort to avoid application of the “but for” standard, employees will likely attempt to rely on the liberal construction accorded to the FCRA. However, a request to apply a liberal interpretation to the FCRA was specifically rejected by the court in Gallagher because of the unambiguous language in the statute, and the application of the plain and ordinary meaning of its terms. Since the phrase “because of” is unambiguous, and its meaning has already been made plain and clear in Gross, any argument for a liberal construction of the FCRA should be rejected.16
Applying the plain and ordinary meaning of the phrase “because of” as enunciated in Gross, courts should make it clear that any claim of discrimination under the FCRA is subject to the “but for” standard of proof. Over the past several years, plaintiff’s employment practitioners have brought an increased number of claims in state court based solely on alleged violations of the FCRA, even though parallel claims could have been asserted under Title VII in the same action. Perhaps many plaintiff’s employment practitioners are concerned that employers will remove such cases to federal court if federal claims are included, and that their chances of defeating a summary judgment motion are better in state court. In addition, perhaps plaintiff’s practitioners do not desire to be subject to the Rule 26 requirements and deadlines often imposed by federal courts. Regardless of the motivation and tactics of plaintiff’s practitioners, they may need to rethink their strategy in abandoning their federal Title VII claims. Because the FCRA uses a single causation standard for all types of discrimination claims, unlike various federal statutes, an interpretation of causation under the FCRA for an age case would arguably apply to any claims under the FCRA, even when the federal statutes have differing language.
1 Gross, 129 S. Ct. at 2351 (2009).
2 Id. at 2350 (emphasis in original); quoting 29 U.S.C. §623(a)(1) (emphasis added).
5 4 2 U.S.C. §2000e-2 passim.
6 Id. , citing 42 U.S.C. §§2000e-2(m) & 2000e5(g)(2)(B).
7 Gross, 129 S. Ct. at 2349-50.
8 See, e.g., Valenzuela v. Globeground N. Am., LLC, 18 So. 3d 17, 21-22 (Fla. 3d D.C.A. 2011) (because the FCRA is patterned after Title VII, the court looks to federal case law involving gender discrimination claim and applicability of McDonnell-Douglas burdens shifting framework); Castleberry v. Edward M. Chadbourne, Inc. , 810 So. 2d 1028, 1030, n. 3 (Fla. 1st D.C.A. 2002) (applying federal case law to FCRA sexual harassment claim involving issue of whether employer knew or should have known and failed to take prompt remedial action); Jones v. United Space Alliance, L.L.C. , 494 F. 3d 1306, 1310 (11th Cir. 2007) (because FCRA is modeled on Title VII, Florida courts apply Title VII case law in interpreting the FCRA in context of whether defendant was entitled to recover attorneys’ fees and applying federal Christianburg standard); Washington v. Sch. Bd. of Hillsborough County, 731 F. Supp. 2d 1309 (M.D. Fla. 2010) (because FCRA was modeled after Title VII, the district court analyzed those claims under the same framework within context of McDonnell-Douglas burden shifting framework); McKenzie v. EAP Mgmt. Corp. , 40 F. Supp. 1369 (S.D. Fla. 1999) (race discrimination claims under the FCRA are treated under the same legal standard as Title VII claim in context of McDonnell-Douglas burden shifting framework); King v. Auto, Truck, Indus. Parts and Supply, Inc. , 21 F. Supp. 2d 1370 (N.D. Fla. 1998) (because the FCRA is patterned after Title VII, federal case law dealing with Title VII claims also applies to the FCRA); Resley v. Ritz-Carlton Hotel Co. , 989 F. Supp. 1442 (M.D. Fla. 1997) (since FCHR essentially mirrors Title VII, courts construing the FCRA will look to federal case law construing Title VII).
9 Casper v. TWC Services, Inc., 2011 WL 5101572, *5 (S.D. Fla. 2011) (because the FCRA is nearly identical to the ADA, federal law interpreting the ADA is applicable to claims under the FCRA and vice versa in context of considering whether an employer’s perception of the employee as disabled was a “motivating factor” in the employment decision).
10 Liles v. Stuart Weitzman, LLC, 2010 WL 2490944, *3, n. 1 (S.D. Fla. 2010).
12 Fla. Stat. §760.07 (emphasis added).
13 Fla. Stat. §760.10(1)(a) (emphasis added).
14 Maggio v. Fla. Dep’t of Labor and Employment Sec., 899 So. 2d 1074, 1078 (Fla. 2005).
15 Gallagher, 927 So. 2d at 918.
16 Id. at 918-919; see also Board of Trustees of Fla. State Univ. v. Esposito, 991 So. 2d 924, 927-928 (Fla. 1st D.C.A. 2008) (expressly stating, “We agree with the analysis in Gallagher and adopt it as our own”); Zamora v. Fla. Atl. Univ. Bd. of Trustees, 969 So. 2d 1108 (Fla. 4th D.C.A. 2008) (also adopting Gallagher).
Darren A. Schwartz is a partner in the Tallahassee office of Rumberger, Kirk and Caldwell, P.A., where he practices labor and employment litigation, representing employers in the defense of employment discrimination lawsuits and claims.
This column is submitted on behalf of the Labor and Employment Law Section, Sherril May Colombo, chair, and Frank E. Brown, editor.