The U.S. Supreme Court today agreed to hear the case of Gross v. FBL Financial Services. Inc. putting the issue of "Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case" squarely before the court (H/T ScotusBlog).
The case, arising out of a 8th Circuit decision (available here), involves an Iowa executive who alleged that he did not get promoted because of his age. A jury found in his favor and the company appealed, claiming that the jury instructions were improper. The 8th Circuit reversed the lower court’s decision finding error in giving a mixed-motive instruction.
The National Employment Lawyers Association filed an amicus brief, in support of the executive’s claims. That brief was accepted by the court today as well.
According to the executive’s petition to the court, the issue raised will resolve an issue that was left open in the Court’s 2003 decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). In that case, the Court held that in a Title VII case a plaintiff is not required to present direct evidence of
discrimination in order to obtain a mixed-motive instruction. Desert Palace expressly reserved decision as to whether such direct evidence would be required in a non-Title VII case. The case now before the Court concerns the Age Discrimination in Employment Act.
For employers, a decision in this case either way is not likely to have a significant impact on HR practices. Rather, the decision will be most relevant to employers litigating employment discrimination cases in the federal courts, particularly when it comes to what each party does or does not need to show to win the case.
For some additional background on mixed-motive cases after Desert Palace, this article has some helpful analysis.