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Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2008 - December 5, 2008

The Supreme Court granted certiorari today in one case of interest to the business community::

Employment Discrimination—Age Discrimination in Employment Act

Employment discrimination suits often involve "mixed motives." In many cases there is evidence that the employment decision giving rise to the suit was motivated by a combination of lawful and unlawful motives. Who prevails in such cases—the plaintiff or defendant—will frequently depend on which side bears the burden of persuasion. The Supreme Court granted certiorari today in Gross v. FBL Financial Services, Inc., No. 08-441, to decide whether a plaintiff in a non-Title VII employment discrimination case must present "direct evidence" of discrimination to obtain a "mixed-motive" jury instruction that shifts the burden of persuasion to the defendant.

The case involves a recurring issue that is of major importance to employers. If the Court sides with the plaintiff, employers will have a significantly harder time defending against discrimination suits.

In Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the Supreme Court held that a plaintiff bringing suit under Title VII of the Civil Rights Act of 1964 does not have to present direct evidence of discrimination to obtain a mixed-motive jury instruction. Rather, he or she need only present "sufficient evidence" of any kind for a "reasonable jury to conclude, by a preponderance of the evidence," that race, color, religion, sex, or national origin was "a motivating factor" for the challenged employment decision. Id. at 101 (emphasis added). Once this threshold is cleared, the burden shifts to the employer to demonstrate, as an affirmative defense, that it "would have taken the same action in the absence of the impermissible motivating factor." Id. at 93-94. Desert Palace, which turned on a specific provision in Title VII, did not decide whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive instruction in a non-Title VII case, and the lower courts are split over the issue. The decision in Gross, although it arises specifically under the Age Discrimination in Employment Act, will likely resolve that issue with respect to all non-Title VII cases.

Barring extensions, amicus briefs in support of the petitioner are due January 27, 2009, and amicus briefs in support of the respondent are due February 27, 2009. Any questions about this case should be directed to Archis Parasharami (+1 202 263 3328) in our Washington, DC office.

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed.

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