Last week, the United States Supreme Court agreed to review Gross v. FBL Financial Services, Inc., a case involving whether a plaintiff alleging a claim under the Age Discrimination in Employment Act must present "direct evidence" of discrimination to be entitled to a mixed-motive jury instruction.
A mixed-motive case in one where the evidence shows that an impermissible factor – such as age – was considered in making an employment decision even if the employer also based the decision on other permissible factors. In Gross, the plaintiff prevailed after a jury trial in which the jury was instructed that it was sufficient that the plaintiff proved age was a "motivating factor" in his employer’s decision to terminate his employment. (A "motivating factor" is considered an eaiser burden of proof than "direct evidence"). The Eighth Circuit Court of Appeals reversed, holding that the "motivating factor" standard applies only to cases brought under Title VII of the Civil Rights Act of 1964 (i.e., sex, race, national origin and religious discrimination claims) and that Gross needed to prove his case with direct evidence to be entitled to a mixed-motive instruction.
Do employers need to be concerned about this case? Not really. This is one of those cases that means more for us lawyers than it does for our clients. If the Court rules for Gross, it will make certain types of age discrimination marginally easier for plaintiffs, but this will not change an employer’s obligation to base employment decision only on permissible factors, such as performance, and not on impermissible factors, such as age.