The U.S. Supreme Court has agreed to review an employment law case in which Jack Gross claimed that his employer, West Des Moines-based FBL Financial Group Inc., demoted him because of his age.

The legal issue to be reviewed is whether the trial court erred in the instruction it gave to the jury about the evidence it should consider to determine whether age was a motivating factor in demoting Gross, who was in his mid-50s at the time. The Supreme Court accepted the case for review on Dec. 5.

Filed in April 2004, the suit claimed that FBL violated the Age Discrimination in Employment Act. During a five-day trial, the judge used a mixed-motive jury instruction, instructing the jury that “Gross had the burden to prove that (1) FBL demoted Gross to claims project coordinator on Jan. 1, 2003, and (2) that Gross’s age was a motivating factor in FBL’s decision to demote Gross.” The judge further charged the jury that the “verdict must be for FBL … if it has been proved by a preponderance of the evidence that defendant would have demoted plaintiff regardless of his age.” The jury returned a verdict in favor of Gross, awarding lost compensation in the amount of $46,945.

In a 2003 ruling, the Supreme Court held that based on a 1991 federal statute, a complaining employee does not have to provide direct evidence of discrimination as part of the complaint. That was a change in the treatment formerly given to the so-called mixed-motive concept, in which a personnel decision regarding an employee who is part of a protected class may be motivated by both legitimate business considerations and discrimination. A mixed-motive case requires the employee to demonstrate that a protected characteristic, such as race, sex or age, was a substantial factor in an employer’s adverse action. If that is established, the employer then has the burden of proving that the decision would have been made in any event, regardless of the employee’s protected characteristic.

On appeal, FBL argued in part that the trial court had erred in giving the mixed-motive instruction. The 8th U.S. Circuit Court of Appeals in May reversed the judgment and remanded the case for a new trial, holding that the mixed-motive jury instruction was not correct because it shifted the burden of persuasion on a central issue in the case.

The justices are expected to hear oral arguments sometime in March, with a decision expected early in 2010.