The United States Supreme Court has been very active recently in hearing employment law cases, and this term is no exception.   In fact, just last week, the Court heard oral argument on what has become a closely watched age discrimination case that arose in Iowa. 

Gross v. FBL Financial Services, Inc., which was tried in Des Moines before U.S. Magistrate Thomas Shields, concerns the burden of proof when the employer has a mixed motive.   Mixed motive refers to a situation in which a protected characteristic such as age may have played a role in the employment decision, but the same decision would have been made regardless of the plaintiff’s age.  One of the issues presented to the Court in Gross was who bears the ultimate burden of proving the "same decision" defense. 

Judge Shields instructed the jury that if the plaintiff proved that age was a motivating factor in his termination, the burden shifted to the employer to prove it would have taken the same action even if age was not a factor.   However, on appeal, the Eighth Circuit reversed the trial court, and held that the burden or persuasion shifts to the employer only if the plaintiff proves by direct evidence that age was a factor.  If the plaintiff has only circumstantial evidence of age bias, the burden remains on the plaintiff.  Direct evidence of bias is generally much more difficult for a plaintiff to find, so many discrimination cases rely upon circumstantial evidence. 

We will keep close tabs on the Gross case, and will provide a full report and analysis when the Court issues its ruling.