June 19, 2009

A high court divided 5-4 gives employers a surprise victory, ruling that plaintiffs cannot prevail on the same "mixed-motive" analysis under which they could win a race or sex discrimination suit. But Congress could override the Court as it did with Ledbetter and ADA rulings, and Daniel Schwartz warns that "vast majority of ADEA cases never used the mixed motive analysis anyway. If there is circumstantial evidence of discrimination, courts traditionally allow those claims to proceed to trial."