Is a plaintiff required to present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case? This question, specifically left unanswered by the Supreme Court in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), will soon be answered. On December 5, 2008, the Supreme Court granted a request to review the case of Gross v. FBL Financial Services, Inc., which presents this exact question.

The Supreme Court’s answer to this question will be important for employers because it will dictate when an employer will be required to prove that it would have made the same decision absent an employee’s age, disability, FMLA status, or other non-Title VII protected characteristic. With the expected increase in litigation, particularly age discrimination litigation, due to the economic downturn and the resulting reductions-in-force and other restructuring, this distinction will be important for employers evaluating the likelihood of success for an employee’s age discrimination claim.

To understand the current state of the law surrounding the issue, one must begin with the Court’s holding in Desert Palace. In Desert Palace, the Supreme Court held that in a Title VII case, a plaintiff is not required to present direct evidence of discrimination in order to obtain a mixed-motive jury instruction. As a practical matter, direct evidence is rarely available and is often considered to be the “smoking gun” comment that directly links the employment decision and the employee’s protected characteristic, i.e., “I fired her because she’s a woman.” Instead the Supreme Court held that the more common circumstantial evidence could be sufficient to obtain a mixed-motive instruction. A mixed-motive instruction is an instruction that if the plaintiff demonstrates that a discriminatory or retaliatory reason was a motivating factor behind an employment decision, the burden of proof then shifts to the defendant to demonstrate that it would have taken the same action absent the discriminatory or retaliatory factor. The Court’s decision in Desert Palace relied in part on certain provisions of the 1991 Civil Rights Act that apply only to Title VII. Specifically, Section 107 of the 1991 Act amended Title VII by adding §2000e-2(m): “Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” The ADEA and other employment discrimination statutes were not so amended. Due to the reliance on the language in §2000e-2(m) and because the Court expressly reserved the question of whether the requirement of direct evidence exists for non-Title VII plaintiffs, the federal appellate courts have split over the direct evidence requirement for plaintiffs bringing claims under the Age Discrimination in Employment Act and other federal employment discrimination statutes.

The majority of circuits have ruled that direct evidence is not required for non-Title VII plaintiffs to receive a mixed-motive instruction. Following Desert Palace, several circuits, including the First, Fifth, Seventh, Ninth and Tenth Circuits, have held that direct evidence was not required for the non-Title VII plaintiff. See, e.g., Estades v. Associates Corp. of North America, 345 F.3d 25 (1st Cir. 2003); Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir. 2004); Faas v. Sears, Roebuck & Co., 532 F.3d 633 (7th Cir. 2008); Bell v. Kaiser Foundation Hospitals, 122 Fed. Appx. 880 (9th Cir. 2004); McCrary v. Aurora Public Schools, 57 Fed. Appx. 362 (10th Cir. 2003). However, the Second, Third and Eighth Circuits still require a showing of direct evidence for a non-Title VII plaintiff to receive a mixed-motive instruction. See Sista v. CDC Ixis North America, Inc., 445 F.3d 161 (2d Cir. 2006); Glanzman v. Metropolitan Management Corp., 391 F.3d 506 (3d Cir. 2004); King v. Hardest, 517 F.3d 1049 (8th Cir. 2008).

The Gross case how before the Supreme Court originates out of the Eighth Circuit. Mr. Gross, an employee of FBL, alleged that he was demoted in 2003 due to his age. Prior to 2003, Mr.Gross had held the position of Claims Administration Director. As part of a restructuring in 2003, Mr.Gross was reassigned to the position of Claims Project Coordinator. At that time, many responsibilities associated with the Claims Administration Director position were transferred to a new position, Claims Administration Manager. This position was filled by Lisa Kneestern, an employee in her early forties. At the time, Mr. Gross was 55 years old. Mr.Gross brought suit in April 2004 alleging a violation of the ADEA. After a five-day trial, a jury found in favor of Mr. Gross and awarded him $46,945 in lost compensation.

FBL appealed the district court decision on several grounds, including the court’s overruling of FBL’s objections to the final jury instructions on Mr.Gross’s mixed-motive theory. Mr. Gross conceded that he had no direct evidence of age discrimination. However, the district court charged the jury that Mr.Gross had the burden to prove that (1)FBL demoted Mr.Gross to Claims Project Coordinator on January 1, 2003, and (2)that Gross’s age was “a motivating factor” in FBL’s decision to demote Gross. The instruction continued that the jury’s instruction must be for FBL “if it has been proved by a preponderance of the evidence that defendant would have demoted plaintiff regardless of his age.” Thus, the court allowed for a burden-shifting instruction, despite Mr.Gross’s lack of direct evidence.

The Eighth Circuit reversed and remanded for a new trial on the basis that the jury was not instructed correctly. According to the Eighth Circuit, because Mr.Gross had no direct evidence of age discrimination, the court should not have given a burden-shifting instruction.

Mr. Gross petitioned the Supreme Court for Certiorari on the question of the jury instruction, citing to both the circuit split and the Court’s express reservation of the question in Desert Palace. Stay tuned to Workplace Horizons for the Court’s decision.