The article focuses on the U.S. Supreme Court’s recent decision in which the Court held that a plaintiff asserting an intentional age discrimination claim cannot avail himself of the mixed-motives proof structure and instead must prove but-for causation. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). The decision was controversial, and it has provoked calls for a legislative response. My article considers Gross from two perspectives. First, Gross is the second Supreme Court decision, following Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), to interpret the effects of the Civil Rights Act of 1991 on the disparate treatment proof structures (pretext and mixed motives). Desert Palace changed the disparate treatment law under Title VII and left it in a confused state. Gross changed what most believed to be the disparate treatment law under the Age Discrimination in Employment Act (ADEA). Second, Gross is the latest in a series of Supreme Court decisions reducing the protections of the ADEA below those in Title VII. The article uses as a metaphor the story of the Tower of Babel to depict employment discrimination law as a building project that went awry after the Architect (Congress) issued modifications to its original blueprint in the form of the Civil Rights Act of 1991. The Master Builder (the Supreme Court) has interpreted the 1991 modification in ways that have reduced the simplicity, certainty, and symmetry of the building. I contend that Desert Palace demonstrated that the Architect needed to step in and issue new plans, and Gross has made this a more urgent need. The article proposes the needed changes.


12 U. Pa. J. Bus. L. 683 (2010)


Employment Discrimination, United States. Age Discrimination in Employment Act of 1967, United States. Americans with Disabilities Act of 1990, Discrimination in employment -- Law & legislation, Law -- Interpretation & construction

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