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Gross v. FBL Financial

Supreme Court Fails to Hold Age Discrimination Claims to the Same Standard as Other Discrimination Cases


In a case arising under the Age Discrimination in Employment Act, the U.S. Supreme Court, by the narrowest possible margin and over a sharp dissent, denied older workers the same protections afforded employees whose claims arise under other federal work place civil rights laws. AARP filed a friend-of-the-court brief, which argued vehemently against the imposition of such a two-tiered legal standard, and, like most advocates for work place civil rights, was shocked by the breadth of the Court’s adverse ruling.


Jack Gross worked for FBL Financial Group. He filed a lawsuit alleging that he had been demoted because of his age in violation of the Age Discrimination in Employment Act (ADEA). Since the evidence presented at trial showed that Gross’s age as well as legitimate considerations may have played a role in his demotion, the judge gave the jury a “mixed motive” instruction. He told the jurors that if they found that Gross’s age was a motivating factor in his demotion, they should find that FBL had violated the ADEA unless they further found that FBL would have made the same decision — to demote Gross — if his age had not played any role in the demotion decision.

The jury found that Gross had met his burden and his employer had not done so, and awarded Gross almost $50,000 in compensation. The trial judge concluded that while Gross had not presented direct evidence of age discrimination, there was sufficient circumstantial evidence to support the jury’s verdict that FBL had intentionally discriminated against Gross on the basis of age.

FBL appealed, arguing that under a 1989 Supreme Court case (Price Waterhouse v. Hopkins), which has caused a great deal of confusion in the lower courts, the plaintiff in an age discrimination case must present direct evidence of discrimination to obtain a mixed motive jury instruction. A majority of the justices in that case concluded that even if the plaintiff’s evidence showed that the employer’s decision was based in part on an illegal criterion, the defendant still could completely escape liability if it showed that it would have made the same decision had the illegal criterion not played a role.

Congress reacted to that 1989 Supreme Court decision by passing the Civil Rights Act of 1991 (CRA), which, without mentioning or referring to direct evidence, amended Title VII of the Civil Rights Act of 1964 — the law that prohibits discrimination on the basis of race, color, religion, sex, or national origin — to change the result of Price Waterhouse. The CRA made it clear that if the plaintiff in a mixed motive case shows that an illegitimate criterion was a motivating factor in the employer’s decision, the employer has violated the law. While the employer in such a case cannot escape liability, the amendments also limit the remedies available to a Title VII mixed motive plaintiff. For reasons unknown, however, Congress did not similarly amend the ADEA.

In Desert Palace v. Costa, the Supreme Court unanimously ruled that a plaintiff in a mixed motive sex discrimination case under Title VII does not need to produce direct evidence of discrimination to shift the burden of proof to the defendant. The Desert Palace decision was based in part on the CRA and in part on the fact that Title VII does not mention direct evidence. The Court concluded that if Congress intended to hold Title VII plaintiffs to a proof standard different from that applicable to ordinary civil cases, it would have said so in the CRA. In Costa, however, the Court expressly reserved judgment on the question whether direct evidence is required to shift the burden in a non-Title VII mixed motive case. It is this question that the Court said it would decide when it agreed to hear the Gross case.


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Find cases in which AFL has advocated in courts nationwide for the rights of older persons, and filed AARP’s amicus curiae (“friend of the court”) briefs that help courts decide precedent-setting cases. The cases within the drop-down categories below are in alphabetical order for ease of searching.

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Our legal advocacy initiatives  - conducted by AARP Foundation Litigation (AFL) - reflect nearly 20 years of work in federal and state courts across the country. Through our efforts, we support the Foundation’s four impact areas: Tackling Senior Hunger, Paving the Way to Stable Income, assuring the adequacy and availability of Safe and Afffordable Housing and Reconnecting People to Families and Communities, and ensure that those 50 and older have a voice in the laws and policies that affect their daily lives.