by Art Gutman Ph.D., Professor, Florida Institute of Psychology
In Gross v. FBL (2009) (see http://laws.findlaw.com/us/000/08-441.html), the Supreme Court struck ruled the “mixed-motive” scenario for the ADEA. This was generally seen as a defeat for older workers with strong evidence of age discrimination because mixed-motive rules force defendants to prove they would make the same selection decisions even in the face of provable illegal motives. However, in Mora v. Jackson Memorial Foundation [2010 U.S. App. LEXIS 3668], decided on February 23, 2010, the Gross v. FBL ruling benefited the plaintiff. Mora, who was terminated at age 62, alleged that the foundation’s chief executive, who terminated her, made ageist remarks against her during the termination meeting. Following mixed-motive rules, the trial judge ruled there was sufficient evidence of an illegal motive to discriminate against Mora, but the foundation had sufficient evidence to prove the termination was, nonetheless, based on legal reasons. Therefore, the judge granted summary judgment for the defense (SJD). However, the 11th Circuit, acknowledging that Gross v. FBL outlawed mixed-motive rules for the ADEA, nevertheless ruled there was sufficient evidence under more traditional disparate treatment rules to overcome SJD. The 11th Circuit ruled that “making all reasonable inferences in [Mora’s] favor” that a “factual issue exists on this record whether [Jackson] discriminated against her.” Note to employers --- discourage ageist remarks!