Document Type


Publication Date

Fall 2010


Employment discrimination, Gross v. FBL Financial Services, Inc., Protecting Older Workers against Discrimination Act, POWDA, Title VII of the Civil Rights Act of 1964, ADEA, Age Discrimination in Employment Act, Americans with Disabilities Act, ADA, McDonnell Douglas v. Green, Price Waterhouse v. Hopkins, Civil Rights Act of 1991, Desert Palace, Inc. v. Costa


Labor and Employment Law | Litigation


Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. Gross holds that the so-called mixed-motive jury instruction, which we call the motivating factor instruction, is not available in age, and possibly disability and retaliation cases. The decision prompted an outcry from the plaintiffs' bar and Congress has proposed legislation to overturn Gross. Despite the outcry, a simple question persists: Does the motivating factor jury instruction influence case outcomes? Results from our experimental mock jury study suggest that such jury instructions do influence outcomes in employment discrimination cases. Moreover, we also found a defect in the standard jury instruction that neither Gross nor the proposed legislation corrects or even addresses: the motivating factor instruction misleads juries and fuels unintended costs and fee awards to employees. Our paper proposes two corrections, one for Congress and one for the courts, either of which would correct the motivating factor defect and provide more certainty and fairness for employment discrimination litigants.

Publication Citation

Published in: Arizona State Law Journal, vol. 42, no. 3 (Fall 2010).