SCOTUScast 5-27-09 featuring Shay Dvoretzky

On Tuesday, March 31, 2009, the Supreme Court heard oral argument in Gross v. FBL Financial Services. The Supreme Court here considers the kind of evidence needed in a case of mixed motive non-Title VII discrimination. Petitioner Jack Gross sued his employer, respondent FBL, under the Age Discrimination in Employment Act, alleging that he was demoted in 2003 on account of his age. The district judge at trial gave a mixed motive instruction under which Gross only had to show that age was a “motivating factor” to prevail, unless FBL could prove it would have made the demotion even without considering his age. The jury found in favor of Gross, but the Eighth Circuit overturned the jury verdict on appeal, reasoning that mixed motive instructions in cases of non-Title VII discrimination can only be given if the plaintiff offers “direct evidence” of discrimination. The Supreme Court now considers what kind of evidence a plaintiff must present to obtain a mixed motive instruction in such cases. Jones Day attorney Shay Dvoretzky discusses the case.

 

Oral Argument - March 31, 2009:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-441.pdf

 

 

 

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