Petitioner's brief in Gross v. FBL Financial
January 26, 2009 by Ross Runkel at LawMemo
The issue before the US Supreme Court is: "Must a plaintiff present direct evidence of discrimination in order to obtain a Mt. Healthy mixed-motive instruction in a non-Title VII discrimination case?"
Ever since Congress amended Title VII in the Civil Rights Act of 1991 with the intent of overruling Price-Waterhouse v. Hopkins, 490 US 228 (1989), many have wondered what the Supreme Court would do in a non-Title VII case.
In Price-Waterhouse, 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."
However, the Civil Rights Act of 1991 superseded Price-Waterhouse by making "motivating factor" (rather than "direct evidence") the touchstone for mixed-motive analysis for Title VII discrimination cases.
But what about ADEA cases, such as Gross v. FBL Financial [Details], now pending before the Court?
Today the petitioner, Jack Gross, filed his brief on the merits. Counsel of record Eric Schnapper of the University of Washington School of Law argued it exactly the way I would have - asking the Court to treat this like an ordinary run-of-the-mill evidence case in which the ordinary rules should apply.
Here's an outline of Petitioner's brief: [Full text of brief]
I. The ADEA Should Not Be Construed To Impose Any Elevated Evidentiary Standard In The Absence of An Express Statutory Direction
II. The Imposition of Elevated Evidentiary Requirements Should Be Made by CongressA. Congress Should Determine When The Conventional Standards of Proof Should Be Modified
B. Congress Should Determine What Evidentiary Standard Should Be Substituted for The Conventional Standards
III. Special Evidentiary Standards Would Impede Enforcement of The ADEA
IV. A Direct Evidence Requirement Is Not Supported by This Court’s Decision In Price Waterhouse
V. The Decision of The Court of Appeals Is Based On A Misunderstanding of The Relationship Between Price Waterhouse and McDonnell Douglas
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