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High Court Weighs Age-Discrimination Case

The U.S. Supreme Court took up an age-discrimination case today with potential importance for the employment practices of schools.

The issue in Gross v. FBL Financial Services Inc. (Case No. 08-441) is whether a plaintiff suing under the federal Age Discrimination in Employment Act must present direct evidence of bias to obtain a "mixed-motive" jury instruction.

Such an instruction is potentially advantageous to plaintiffs because it shifts the burden of proof to employers to show there was a legitimate reason for an adverse job action in addition to any discriminatory ones.

The justices ruled in a 2003 case, Desert Palace Inc. v. Costa, that direct evidence is not required to get a mixed-motive jury instruction in cases brought under Title VII of the Civil Rights Act of 1964, the main federal job-discrimination law. But lower courts are divided on whether the same standard applies to the age-discrimination law.

In a lively oral argument, the justices spent much time discussing whether the various tests and different forms of evidence required in different discrimination cases were just too complicated, and whether they should use this case to clarify matters.

"Juries are smarter than judges," Justice David H. Souter said at one point, suggesting that it might be best to let them sort out the evidence of discrimination without complicated burden-shifting instructions.

"If you said to the jury, do the right thing, they'd probably come out the same way it would come out if you gave the burden-shifting instruction, I think," Souter said.

In a friend-of-the-court brief filed on the side of the employer in the case (an insurance concern accused of demoting a supervisor based on age bias), the National School Boards Association reminded the justices that age issues are ever-present, and becoming more relevant, in school employment.

"Shifting the burden to favor plaintiffs in age-discrimination cases will inhibit schools from making" such "necessary choices" as sometimes favoring "recently trained or lower-paid teachers," who just may happen to be younger teachers, the NSBA brief says.

In fact, veteran--that is, older--teachers and administrators may not take much comfort from the NSBA brief.

"School employment policies are traditionally seniority-driven," the brief says. "But given the challenges facing districts today, years of experience should not be the sole measure of an individual's performance as a teacher or administrator."

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