Robert Fuller

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In Gross v. FBL Financial Services, Inc., the United States Supreme Court was asked to clarify whether the direct evidence requirement articulated in Price Waterhouse v. Hopkins-later superseded by the Civil Rights Act of 1991-applied to mixed-motive claims brought under the Age Discrimination in Employment Act of 1967 (ADEA). In an unexpected twist, the Court held that a plaintiff must prove by a preponderance of any evidence, direct or indirect, that age was the "but for" or "determinative" cause of the adverse employment action. Accordingly, the employer bears no burden of persuasion on any issue in defending claims under the ADEA If the plaintiff carries that heavy "same decision" defense that previously avoided ADEA liability once the plaintiff had shown that age played some part in the challenged employment decision. Because the Court's decision in Gross requires ADEA plaintiffs to show that age played a decisive causative role, the ADEA defendant has no defense to carry and hence no burden of persuasion. Although it simplifies the analysis for ADEA mixed-motive claims, the decision, should it survive nascent congressional stirrings of opposition, will make it harder for plaintiffs to survive summary judgment motions or motions for judgment as a matter of law. Courts will now also be forced to consider whether Gross has an impact on the trial of claims under 42 U.S.C. § 1981 and 42 U.S.C. § 1983.