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Trial Ordered After High Court Age-Bias Ruling

(CN) - The 8th Circuit ordered a new trial for the employer in an age-discrimination case sent back by the U.S. Supreme Court. "The Supreme Court has clarified that the burden of persuasion never shifts to the defendant" in age-discrimination cases, the appellate panel wrote.

Jack Gross, a former employee of FBL Financial Services, acknowledged that he had no direct evidence of discrimination. A jury nonetheless awarded him nearly $47,000 in lost compensation for his claim that FBL demoted him because he was too old.

The St. Louis-based appeals court granted FBL a new trial after finding that the final jury instruction "impermissibly shifted the burden of persuasion to FBL to prove that age was not the determining factor in its employment decision."

The disputed instruction, meant to address the possibility that FBL had mixed motives for demoting Gross, stated: "[Y]our verdict must be for [FBL] ... if it has been proved by the preponderance of the evidence that [FBL] would have demoted plaintiff regardless of his age."

Though the St. Louis-based appeals court ultimately reversed the award and remanded for a new trial, its opinion assumed that the burden would shift if the plaintiff presented direct evidence of discrimination.

The Supreme Court clarified that this is not the case; the burden never shifts to the defendants in cases filed under the Age Discrimination in Employment Act.

On remand, Gross insisted that the jury instruction was correct under the Iowa Civil Rights Act, so the verdict should still apply to any state-law claims.

But Iowa law doesn't shift the burden unless the plaintiff can provide direct evidence of discrimination - something Gross himself conceded he didn't have, the three-judge panel noted.

"Thus, under either the prevailing Iowa precedents or the Gross analysis, the district court's jury instructions incorrectly shifted the burden of persuasion to the defendant in this mixed-motive case," Judge Steven Colloton wrote.

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