U.S. Supreme Court: ADEA Plaintiffs Not Entitled to "Mixed Motive" Instruction

Monday, June 29, 2009
The Supreme Court has determined that under the federal Age Discrimination in Employment Act employees alleging disparate treatment can no longer show at a minimum that age discrimination was merely a "motivating factor" or "mixed motive" in an adverse employment action.
Gross v. FBL Financial Services, Inc., June 18, 2009

After a trial the U.S. Court of Appeals for the Eighth Circuit overturned the jury verdict and instructed that ADEA plaintiffs must present "direct evidence sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action."

Both parties appealed to the U.S. Supreme Court on the question of whether a plaintiff must present direct evidence of discrimination in order to obtain a "mixed-motive" jury instruction in a non-Title VII discrimination case.

Instead of answering the question upon which review was sought and granted, however, a majority of the Justices decided they must first determine whether the defendant-employer ever has the burden of persuasion in a mixed-motives discrimination claim brought under the ADEA. On this, five members of the Court decided that the ADEA does not authorize a mixed-motives age discrimination claim.
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