In 2009, the Supreme Court issued a blow to mixed motive Age
Discrimination in Employment Act (ADEA) cases in Gross v. FBL
Financial Services, Inc. In Gross, the Court
essentially held that age must be the reason for a
challenged employment decision, as opposed to merely a
reason for the decision. This departure from previous
interpretations of mixed motive theories in the ADEA context
prompted a significant amount of controversy. It also called into
question the use of mixed motive theories in other contexts.
Legal Background
In relevant part, the ADEA provides "[i]t shall be unlawful
for an employer. . .to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29
U.S.C. ¶ 623(a)(1) (emphasis added). Notably (and unlike Title
VII), the ADEA contains no specific provision addressing
