[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Monday in Gross v. FBL Financial Services [oral arguments transcript, PDF; JURIST report], in which the Court will decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII [text] discrimination case. The case involves an executive, Jack Gross, who claims he was passed over for a promotion at FBL Financial Services [corporate website] in favor of a younger employee in violation of the Age Discrimination in Employment Act (ADEA) [text]. In 2003, the Court ruled in Desert Palace v. Costa [opinion text] that direct evidence – evidence linking an adverse employment action to a specific motive – is not required in a mixed-motive case under Title VII, but left open the issue of whether direct evidence would be required outside the Title VII context. The US Court of Appeals for the Eighth Circuit [official website] ruled [opinion, PDF] in May that direct evidence is required under the ADEA. Counsel for Gross argued: "The court of appeals erred in holding that the plaintiff had to have direct evidence in order to obtain the specific instruction at issue in this case. … [T]his Court had at no time imposed a direct evidence requirement without an affirmative directive from Congress to do so." Counsel for FBL "urge[d] the Court not to evaluate this case strictly on the question of whether direct versus circumstantial evidence is the appropriate way to proceed," saying:

I would hope that the Court would seize upon this as an opportunity to provide some significant clarity in the law, rather than seize this as an opportunity to decide this case on the potentially most narrow ground, which, frankly, as far as I can tell, will not only not decide this case, ultimately, but certainly will not do anything to resolve the mass confusion that seems to exist among the lower courts.

The US government intervened on behalf of Gross, arguing that the Court should decide the case on narrow grounds: "I think both on a substantive level and a procedural level Desert Palace largely resolves this case."