Court takes non-Title VII mixed motive case (Dec. 5, 2008)

The Supreme Court agreed to step into a dispute about exactly what standards should apply in a non-Title VII mixed-motive discrimination case.

Jack Cross began working at FBL Financial Group in 1987. During a company reorganization in 2001, Gross – the claims admistration vice president – was reassigned to the position of claims administration director. He considered the position a demotion because his points were reduced under the company’s point system for determing salary grades. In 2002, FBL eliminated Gross’ position and reassigned him. Some of his old responsibilities were transferred to a new claims administration manager position.

Although Gross’ new position had the same salary points and pay grade as the manager position, he contended the reassignment was a demotion because the claims administration manager “assumed the functional equivalent of Gross’ former position, and his new position was ill- defined and lacked a job description or specifically assigned duties.”

Gross sued FBL, alleging that in making the 2003 reassignment, the company demoted him because of his age. The trial court used a mixed-motive jury instruction, instructing the jury that “Gross had the burden to prove that (1) FBL demoted Gross to claims project coordinator on January 1, 2003, and (2) that Gross’s age was a motivating factor in FBL’s decision to demote Gross.” The trial court further charged the jury that the “verdict must be for FBL... if it has been proved by a preponderance of the evidence that defendant would have demoted plaintiff regardless of his age.” The jury returned a verdict in favor of Gross, awarding lost compensation in the amount of $46,945.

On appeal, FBL argued in part that the trial court had erred in giving the mixed-motive instruction. The Eighth U.S. Circuit Court of Appeals reversed the judgment and remanded the case for a new trial, holding that the mixed-motive jury instruction was not correct because it shifted the burden of persuasion on a central issue in the case.

On Dec. 5, the U.S. Supreme Court accepted the case for review. The justices are expected to hold oral arguments some time in March.

Question presented: Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.