MUST A PLAINTIFF PRESENT DIRECT EVIDENCE OF DISCRIMINATION IN ORDER TO OBTAIN A MIXED-MOTIVE INSTRUCTION IN A NON-TITLE VII DISCRIMINATION CASE?

Potentially one of the most significant pending employment law matters in recent history reached the U.S. Supreme Court for oral argument on March 31, 2009: Gross v. FBL Financial Services, Inc., where the Court considered the issue of burden of proof in "mixed motive" cases under the Age Discrimination in Employment Act (ADEA). The High Court granted certiorari on the question, "must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?" One of the most noteworthy issues to have arisen during the briefing in this case, is whether the Court should limit itself to that question or decide, instead, a much broader question of much greater importance - namely, whether to overrule its decision in Price Waterhouse v. Hopkins, and hold instead that the plaintiff must always bear the burden of proof in mixed motive cases.

Petitioner Jack Gross sued his employer for age discrimination in violation of the ADEA, alleging he was demoted because of his age. The employer both denied that age was a factor in its decision-making and further argued that even if it had been, it also had a legitimate reason for demoting Gross. The question then arises: if the employer would have taken the same action anyway, regardless of its discriminatory motive, should it be held liable for intentional discrimination because it also had an illegal motive? And if not, who should bear the burden of proving what the employer would have done absent the discriminatory motive?

The Supreme Court set the rules for such "mixed motive" cases under Title VII in Price Waterhouse. It held that the answer to the first question is "no" - the employer is not liable if it would have taken the same action anyway, despite the discriminatory motive. A majority of the Justices further agreed (albeit in fractured opinions) that upon an appropriate showing by the plaintiff, the burden should shift to the defendant to prove that it would have taken the same action anyway. Congress overruled Price Waterhouse to the extent it held that an employer who makes the required showing is not liable at all for the discrimination. Instead, the 1991 Civil Rights Act Amendments provide that the employer is liable, but is subject to reduced employee remedies. However, Congress did not apply this new provision to the ADEA.

In this case, the district court instructed the jury that if the plaintiff proved by a preponderance of the evidence, direct or otherwise, that age was a motivating factor in the decision to demote him, then the burden of persuasion shifted to the defendant to prove it would have taken the same action absent the prohibited consideration of age.

On appeal, the Eighth Circuit reversed, holding that the burden of persuasion should shift to the defendant only if the plaintiff proved that age was a motivating factor by presenting direct evidence of age bias. When the plaintiff relies on circumstantial evidence, the court held, the burden of proof remains on the plaintiff, who must demonstrate that the employer would not have demoted him but for his age. Gross petitioned for certiorari, asking the Court to decide whether the burden of proof in mixed motive cases shifts to the employer only when direct evidence of bias is presented, or whether it shifts in all cases, regardless of the type of evidence. Respondents' brief in opposition focused on disputing that there was a circuit split on the question, or whether this case was an appropriate vehicle to resolve the asserted split. The Court eventually granted certiorari.

A copy of the oral argument transcript is available for download and viewing. A decision is expected before the Supreme Court completes its term this year. This case is worth watching closely, particularly for employers who often find themselves in Federal Court.