Denver partner Steven Moore authored an article, "Court Rejects Mixed-Motives Theory for Age Discrimination," which was published in the Summer 2009 edition of the American Bar Association's Labor and Employment Law newsletter.
According to Moore, who is co-editor of the newsletter, "In a 5–4 decision—in which the dissent sharply criticizes the majority for engaging in judicial activism—the Supreme Court held in Gross v. FBL Financial Services, Inc. that the mixed-motives framework does not apply to disparate-treatment claims filed under the Age Discrimination in Employment Act (ADEA) . . . Justice Clarence Thomas, writing for the majority, held that a plaintiff bringing an ADEA disparate-treatment claim 'must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the 'but for' cause of the challenged employment decision."
"In his dissent, Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, sharply criticized the majority's interpretation of the statute and accused the Court of engaging in an 'unnecessary' and 'unabashed display of judicial lawmaking,'" according to Moore.
Moore concludes: "There will surely be a movement in Congress to amend the ADEA to provide for a mixed-motives framework, thereby undoing Gross. But Gross may still have a jurisprudential impact beyond the ADEA, by encouraging challenges to mixedmotive analyses under other employment laws using the phrase because of."
ABA members can access the full article here (page 6).