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Direct evidence needed for mixed motive analysis?
December 10, 2008 by Ross Runkel at LawMemo
The US Supreme Court will decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.
The Court granted certiorari on December 5 in Gross v. FBL Financial Services, Inc. (Docket No. 08-441) [Details]
The Court is reviewing the judgment of the 8th Circuit in Gross v. FBL Financial Services, Inc. (8th Cir 05/14/2008)
Gross sued the employer, asserting an age discrimination (discriminatory demotion) claim under the Age Discrimination in Employment Act (ADEA). Gross prevailed after a jury trial. The 8th Circuit reversed.
In Price-Waterhouse v. Hopkins, 490 US 228 (1989), a plurality of the United States Supreme Court set forth the analysis applicable to "mixed motive" cases. Justice O'Connor's concurring opinion in that Title VII case is generally seen as the controlling opinion setting forth the governing rule of law. Under that analysis, in order to be entitled to a mixed-motive jury instruction, an employee must produce "direct evidence."
Subsequently, Title VII was amended by the Civil Rights Act of 1991 via the addition of 42 USC Section 2000e-2(m). Section 2000e -2(m) superseded Price-Waterhouse by making "motivating factor" (rather than "direct evidence") the touchstone for mixed-motive analysis for Title VII discrimination cases.
The 8th Circuit held that "Section 2000e-2(m) does not apply to claims arising under the ADEA." The court reasoned that "[b]y its terms, the new section applies only to employment practices in which 'race, color, religion, sex, or national origin' was a motivating factor." The 8th Circuit noted "[w]hen Congress amended Title VII by adding Section 2000e-2(m), it did not make a corresponding change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act." Since the jury in Gross' case was instructed consistent with Section 2000e-2(m) rather than Price-Waterhouse, the 8th Circuit reversed.
Oral argument will be scheduled for sometime in 2009, with a decision expected to follow in the Spring.
My view: It makes no sense to require so-called “direct” evidence, because nobody really knows what that means, and the ADEA makes no mention of it. I think any type of evidence will do, whether or not it gets categorized as “direct evidence.”
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