On June 18, 2009, Justice Clarence Thomas, writing for the familiar right wing of the U.S. Supreme Court, held that the familiar and employee friendly “mixed motives” framework for discrimination cases under Title VII (which prohibits discrimination based on gender, race, religion and national origin)does not apply to discrimination cases based on age under the ADEA. See Gross v. FBL Financial Services, Inc.

Thomas relied on a hyper technical statutory construction analysis to support his employer friendly holding. His motives were not well hidden. He actually disparaged the Price Waterhouse holding that gave birth to the mixed motives burden shifting framework.

“Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden shifting framework is difficult to apply.”

This writer disagrees. Discrimination is very difficult to prove, but we all know it happens. Employees have a difficult time using the McDonnel Douglas frame work when circumstantial evidence is all they have. When they can present direct evidence of discrimination, the employer should be forced to prove that it would have made the same decision anyway.

Our federal anti-discrimination laws now offer that tool for persons claiming race, gender, religion or national origin discrimination, but older workers do not have that same advantage.

Luckily, this case should have no impact on age discrimination cases under Connecticut’s Fair Employment Practices Act. That law covers discrimination for all categories, including age. Further, our Supreme Court has already rule in Levy v. CHRO.236 Conn. 96 (1996) that the mixed motives burden shifting framework applies. The reasoning of Justice Thomas’ opinion will not apply here in Connecticut. Once again, Connecticut’s laws have proven to be more employee friendly that those of the federal government. Lets keep it that way!