Labor & Employment Law — 12/09/08

High Court to determine when mixed-motive instruction may be given in non-Title VII cases

The Supreme Court has agreed to examine the question of whether direct evidence of discrimination must be presented by plaintiffs seeking mixed-motive instructions in cases other than those brought under Title VII of the Civil Rights Act of 1964. On December 5, 2008, the High Court granted a petition for certiorari brought by an employee who had persuaded a jury that his employer demoted him because of his age, only to have the verdict overturned by an appeals court ruling that a mixed-motive instruction should not have been given in the absence of direct evidence of discrimination. ( Gross v FBL Fin Group, Dkt 08-441)

Eighth Circuit holding. The employee hopes to overturn the Eight Circuit's determination that the mixed-motive instruction given to the jury on his Age Discrimination in Employment Act (ADEA) claim erroneously shifted the burden of persuasion on the issue of causation from the employee to his employer upon proof by any evidence - direct or otherwise - that age was a 'motivating factor' in the employment decision (91 EPD ¶43,197). The appeals court reversed and remanded the case for a new trial because the erroneous instruction shifted the burden of persuasion on a central issue.

The appeals court explained that in Price Waterhouse (49 EPD ¶38,936), a splintered opinion, the Supreme Court addressed the proper approach to causation when an employer is motivated by both permissible and impermissible considerations in making an employment decision. The rubric of Justice O'Connor's concurring opinion requiring proof by direct evidence to shift the burden in Title VII mixed-motive cases has been applied to ADEA cases in the Eighth Circuit because of the similar language used in both statutes. Thus, upon the requisite showing of direct evidence that "'an illegitimate factor played a substantial role' in the employment decision,' the burden rests with the employer to persuade the fact-finder that it is 'more likely than not that the decision would have been the same absent consideration of the illegitimate factor.'

While section 2000e-2(m), added to Title VII of the Civil Rights Act of 1991, superseded Price Waterhouse, it did not change the heightened evidentiary burden in ADEA cases, the Eighth Circuit concluded, joining the Third, Fourth and Eleventh Circuits. Nor did the Supreme Court's Desert Palace opinion ( 84 EPD ¶41,403), holding Price Waterhouse inapplicable to cases arising under Title VII and § 2000e-2(m), change the analysis since the Court did not address which Price Waterhouse opinion was controlling or the continuing vitality of that decision. Thus, the direct evidence requirement of Price Waterhouse remains controlling in ADEA cases, according to the Eight Circuit.

Question presented. The precise question that Gross has presented to the Supreme Court for review is: "Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?" The National Employment Lawyers Association has been granted leave to file a brief as amicus curiae.

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