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Nevada Litigation Blog

Supreme Court Rule on Mixed Motives Jury Instruction in Age Discrimination Case

In Gross v. FBL Financial Services, 129 S.Ct. 2343 (June 18, 2009), the plaintiff sued his employer claiming that his demotion was in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”) which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age.”  In a 5-4 ruling, the United States Supreme Court decided that a mixed motives jury instruction “is never proper in an ADEA case.”

At the trial level, the judge instructed the jury that it had to rule in favor of the plaintiff if it found that he was demoted and his age was a motivating factor in the demotion decision, and further told them to return a verdict for the employer only if it proved that it would have demoted the plaintiff regardless of age.  The jury returned a verdict for the plaintiff.  Under Title VII of the Civil Rights Act of 1964 (“Title VII”) an employee can allege that he suffered adverse employment action because of both permissible and impermissible considerations, i.e. a mixed motive case.  Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed2d 268.  This is often referred to as the Price Waterhouse standard.  This standard has often been applied to the other employment discrimination statutes, such as the ADEA.  The Supreme Court noted that while Title VII and the ADEA are both employment related statutes, Title VII is materially different with respect to the relevant burden of persuasion and that the ADEA is not governed by Title VII decisions such as Price Waterhouse.

This ruling should help Nevada employers fend off the wave of baseless claims filed by employees who do not perform satisfactorily, yet choose to file an ADEA claim.  Those employees will now have to prove that they were adversely treated because of their age, and not simply hope to persuade the jury that their age played some part in the decision to discipline them.

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