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“Direct – ionless” Plaintiff Talks Burden of Proof in Supreme Court

Posted by Frank Steinberg | Apr 01, 2009 | 0 Comments

Yesterday the US Supreme Court heard oral argument in Gross v. FBL Financial Services, Inc., an age discrimination case.  Here's the transcript of the oral argument.  The issue, as simply as I can summarize it, was whether the plaintiff needed "direct evidence" of discrimination in order to prevail.  As it turns out, that question is neither simple nor direct.

Carter Phillips, the attorney for the defendant, is a respected and experienced Supreme Court advocate.  He described the case this way:

It does seem to me in some ways the Petitioner and Respondent in this case are ships passing in the night because the issues here are unbelievably complicated. I will say in 25 years of advocacy before this Court I have not seen one area of the law that seems to me as difficult to sort out as this particular one is.

Here's my suggestion.  For the lawyers who are reading this, if you have a spare half hour, read the transcript.  It's guaranteed to make your head spin.  At oral argument it made every participant's head spin, including every Justice who spoke.  (Justice Thomas, as is his practice, said nothing, which probably was wise.  Everyone else was openly and unabashedly confused.)  

For you non-lawyers, just keep monitoring our posts and we'll let you know what happens.

It's hard to predict how this case will be decided.  It will probably be in a narrow way that will interest mostly employment lawyers.  But there's a small — very small — chance that Gross v. FBL will produce some real fireworks in terms of how employment discrimination cases are tried.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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