But today in Gross v. FBL Financial Services (S.Ct 6/18/09)[pdf] the Supreme Court took a pass on that specific question, and instead answered the question it (well at least the 5 in the majority) really wanted to answer:
Can you ever have a mixed-motive instruction under the ADEA?Since the answer was no, the question the rest of us were waiting for, under what circumstances do you get one, remains an open question, at least for Title VII cases.
The reason the 5-4 opinion went the way it did, with Justice Thomas writing it, has to do with differences between the ADEA and Title VII, in particular on the issue of the burden of persuasion.
Even worse, the majority teased us with the idea that perhaps the Supreme Court might if it had it to do over again jettison the mixed motive idea, since it has been so difficult for the courts to implement. (Unfortunately, that idea seems likely foreclosed by the Congressional amendments to Title VII discussed in Justice Thomas' opinion.)
Workplace Prof's first look, thinks it could also impact ADA cases. More detailed analysis will be forthcoming from many I am sure.
My first take -- its an important decision, for now. However, since it is based on a question of statutory interpretation, stay tuned for the Jack Gross Mixed-Motive for Old Folks Bill coming to a Congress near you soon.