Jottings By An Employer's Lawyer

Monday, October 01, 2012

End of the Road for Gross v. FBL Financial Services

Actually that's a misleading headline, what it should say is the end of the line for Jack Gross, the ill fated plaintiff whose lawsuit became the vehicle for the Supreme Court's 2009 decision, which held that the ADEA, unlike Title VII, never permits a mixed motive analysis instead requiring a "but for" test.

Ironically, the well traveled case, which started with a 2003 reassignment Mr. Gross felt was to a lower position, was finally decided on the question which many had hoped the Supreme Court would address -- how do you determine when you get a mixed motive instruction?  In an unpublished opinion affirming a jury verdict in favor of Gross's former employer, the 8th Circuit held that it is a question for the Court, to be determined after all the evidence is presented. Not too surprisngly given the difficulty courts have had applying mixed motive, the Court failed to tell us on what basis it is to be determined. 

I had to smile because one of the cases relied on by the 8th Circuit was Smith v. Xerox Corp, a 2010 decision from the 5th Circuit that has been criticized not only by me, see 5th Circuit En Banc Request on Smith v. Xerox, Please! but also by four members of the 5th Circuit, see Stirrings on Smith v. Xerox in 5th Circuit Internecine Squabble.

Although as expected, the initial Gross decision did result in some legislative stirrings, fortunately none passed. Three years ago next week, I testified before the Senate Judiciary Committee in opposition to such proposed legislation. I wish I could say it was my brilliant thoughts (you can judge for yourself here ,about 51:30 into the hearing) that forestalled such legislation, but I have my doubts.   But last Friday's decision, as well as Smith v. Xerox, illustrate the point I made to the Senate Judiciary Committee. Mixed motive, created when discrimination cases were tried to the court, has not fared well in the world of jury trials. I testified then, and still believe, it is both complex and unneeded, and what should be done is to jettison it from all of employment law, not just ADEA claims, where fortunately,  it has been. 

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I trust you don't mean that "mixed motive should be jettisoned from all employment law," but rather that the tortured analysis created by Smith and Hopkins should be abandoned, and mixed motive cases should be like any other case ---- if an improper motive plays any part in a decision, it's unlawful. (A strict "but for" test is absolutely impossible with employment discrimination claims, and I'm sure you'll concede that.)
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