Yesterday the United States Supreme Court ruled 5-4 that trial courts may not use a "mixed motive" framework in federal age discrimination cases.  Rather, plaintiffs in age discrimination cases must prove that "but for" their age, they would not have been discriminated against.  Click here to read the Court’s decision in Gross v. FBL Financial Services. 

Under a 1991 amendment to Title VII  of the Civil Rights Act of 1964, plaintiffs may prove race, sex, religion or national origin discrimination by proving either they would not have been discriminated against "but for" their employer’s unlawful motive, or if their employer had a "mixed motive," meaning that the employer had some lawful motives to take an adverse action against the employee, but also some unlawful motives.  In "mixed motive" cases, employers can avoid some (but not all) liability by proving that it would have taken the same action against the employee even absent the unlawful motive.  Prior to Gross, several circuit courts (including the Ninth Circuit Court of Appeals) had applied the "mixed motive" framework in cases under the Age Discrimination in Employment Act or the Americans with Disabilities Act, even though those statutes do not incorporate a"mixed motive" framework. 

Gross is ultimately a technical case mostly of interest to employment litigators.  Gross will make it incrementally more difficult for plaintiffs to prevail in age discrimination and some other federal discrimination cases.  Employers do not need to change their current policies and practices in light of Gross – rather, employers should continue not to discriminate on the basis of age, sex or any other characteristic protected by federal, state or local law.  (Well, duh!)