Yesterday, the Supreme Court heard oral argument in Gross v. FBL Financial Group, one of the several employment cases on the docket for this term. For full background, the SCOTUS Blog is a great resource and I discussed it in an earlier post here.  From an employee perspective, the Employee Rights Post shares some interesting perspectives as well as well. 

Its mostly a theoretical discussion, but one that could impact how the courts look at discrimination cases. 

It was expected that oral argument would look at the issue of whether, under the ADEA, an employee needs direct evidence of discriminatory intent to get a mixed motive instruction under the Supreme Court’s previous decision in Price Waterhouse.

But, according to the transcript of the argument , oral argument did not go exactly as planned and at least got the court is to think about the whole mixed motive paradigm.  While its too early to predict the demise of it, this case may now signal where the court wants to move on this confusing part of employment law cases. 

One employment law attorney who attended the argument shared his thoughts with me this morning:

It seemed fairly straightforward: In Desert Palace [a mixed motive case under Title VII, the Court] said no [you don’t need direct evidence], and its analysis did not seem to be controlled by statutory language, but rather general principles of law. In any event, the employer’s attorney got a number of members on the court considering whether there should be a mixed motive analysis of all. He was arguing that the burden should never shift to employer, that the burden of proving whether the employer would have made the adverse employment decision in the absence of the improper motive should be the employee’s. It was a very interesting oral argument. My guess is that the Court won’t overrule Price Waterhouse here, but that it would be interested in rethinking the whole mixed motive paradigm in some future case, but who knows.

A decision is expected before the court completes its term this year.  This is one case worth watching, particularly for employers who often try cases in federal court.

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