Wednesday, April 1, 2009

Argument Recap in Gross v. FBL Financial Servs.

Supct The Supreme Court held oral argument yesterday in Gross v. FBL Financial Services, a case involving when a mixed motive jury instruction will be proper under the Age Discrimination in Employment Act. The plaintiff in Gross had asked for a mixed motive jury instruction, and the defense resisted, arguing that because it had not raised any affirmative mixed motives defense that the instruction was improper.

The oral argument aptly demonstrated, the conceptual mess that employment discrimination cases can present. Counsel for plaintiffs, (Eric Schnapper, Univ. Washington) began by focusing on the direct evidence question. Justice O'Connor's concurrence in Price Waterhouse had said that a mixed motive instruction would be proper when plaintiffs had direct evidence of discrimination. So the argument basically was that the Court had rejected that notion in Desert Palace. In a portion of the opinion not analyzing the Civil Rights Act of 1991 (which did not amend the ADEA, but did amend Title VII), the Court had held that no particular type of evidence, nor more than a preponderance of that evidence is ordinarily required to prove an element of a cause of action absent some statutory directive about the type or quantum of evidence required. The ADEA has no statutory provision providing for a particular type or quantum of evidence, and thus, one shouldn't be imposed. In the course of this discussion, the Justices pushed counsel to define what direct evidence actually is and to explain which opinion in Price Waterhouse should be considered the controlling opinion. Neither issue is clear.

The Solicitor General appeared as an amicus on the petitioner's side, and urged the Court to focus on this narrow issue, and not accept the respondent's argument that the entire proof structure should be revisited. If the entire mixed motive proof structure is revisited, the Court will call into question many other areas of law that use the same or a similar analysis.

The respondent argued very broadly that the entire proof structure and causation analysis in employment discrimination cases should be revisited. The bulk of the discussion on respondent's side was probing into the nature of what a mixed motive is. So there were many questions about multi-party decisions, where some may have an improper motive, and others have a proper motive, and whether that was different from a situation in which a single actor has both proper and improper motives. There was also discussion about how much the improper motive had to weigh in the actor's calculus. Finally, there was discussion about how much proof was needed for a plaintiff to get a mixed motive instruction over the defense's objection since that instruction essentially shifts the burden of proof to the defendant on whether it would have made the same decision without the improper motive.

This case involves some serious questions about how individuals make decisions that could go to the core of many anti-discrimination laws. We've operated under an assumption for a long time that people usually act with a single motive, and act in full self awareness of that motive. We have also recognized that occasionally, people will act with more than one motive, but each motive is considered discrete and separable. Cognitive psychology has cast doubt on the accuracy of that model of human decisionmaking. Perhaps the respondent is right that it's time for some very deep thinking on these issues.

MM

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