Last week, the U.S. Supreme Court made it a whole lot harder for victims of age discrimination to get relief under the Age Discrimination in Employment Act of 1967, or ADEA. In Gross v. FBL Financial Services Inc., the question presented by the petitioner was whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive jury instruction in a suit brought under the ADEA.
The advantage to a mixed-motive instruction for the plaintiff is that the ultimate question is whether prohibited discrimination was “a motivating factor,” which is a facially looser standard than non-mixed-motive cases. In non-mixed-motive cases, or “pretext” cases, the ultimate jury question is whether unlawful discrimination was “the determinative factor,” which is a stricter and typically more difficult showing for the plaintiff.
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