United States: Employment Discrimination—Age Discrimination In Employment Act

Originally published December 5, 2008

Keywords: employment discrimination, age discrimination, Employment Act, Gross v. FBL Financial Services, Desert Palace, Costa, Gross

Employment discrimination suits often involve "mixed motives." In many cases there is evidence that the employment decision giving rise to the suit was motivated by a combination of lawful and unlawful motives. Who prevails in such cases—the plaintiff or defendant—will frequently depend on which side bears the burden of persuasion. The Supreme Court granted certiorari today in Gross v. FBL Financial Services, Inc., No. 08-441, to decide whether a plaintiff in a non-Title VII employment discrimination case must present "direct evidence" of discrimination to obtain a "mixed-motive" jury instruction that shifts the burden of persuasion to the defendant.

The case involves a recurring issue that is of major importance to employers. If the Court sides with the plaintiff, employers will have a significantly harder time defending against discrimination suits.

In Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Supreme Court held that a plaintiff bringing suit under Title VII of the Civil Rights Act of 1964 does not have to present direct evidence of discrimination to obtain a mixed-motive jury instruction. Rather, he or she need only present "sufficient evidence" of any kind for a "reasonable jury to conclude, by a preponderance of the evidence," that race, color, religion, sex, or national origin was "a motivating factor" for the challenged employment decision. Id. at 101 (emphasis added). Once this threshold is cleared, the burden shifts to the employer to demonstrate, as an affirmative defense, that it "would have taken the same action in the absence of the impermissible motivating factor." Id. at 93-94. Desert Palace, which turned on a specific provision in Title VII, did not decide whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive instruction in a non-Title VII case, and the lower courts are split over the issue. The decision in Gross, although it arises specifically under the Age Discrimination in Employment Act, will likely resolve that issue with respect to all non-Title VII cases.

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