Shifting Burdens: Discrimination Law through the Lens of Jury Instructions

This Term, in Gross v. FBL Financial Services, Inc., the U.S. Supreme Court held the Price Waterhouse burden-shifting framework inapplicable to Age Discrimination in Employment Act (“ADEA”) claims. This Article finds the Gross Court’s rationales for repudiating Price Waterhouse v. Hopkins unpersuasive. Although the crux of the Court’s argument is that it is too confusing to instruct a jury on the burden-shifting framework, in actuality, there is no evidence that burden-shifting instructions are unduly confusing. In fact, Gross will exacerbate a different sort of confusion: that which arises when a jury must resolve two claims under different burden frameworks. At best, then, the Gross Court’s concerns over judicial ad-ministration are a wash. They fail to justify the Court’s departure from the 20-year-old Price Waterhouse precedent. The Article therefore considers the possibility that the Court’s decision in Gross was driven by policy views about the nature and merit of ADEA claims, or of employment discrimination claims more generally. By shifting the balance in ADEA and per-haps other employment discrimination cases without articulating a persuasive reason for doing so, the Court may have laid the groundwork for Congress to revisit the question—thus opening the way for a more explicitly policy-based overhaul of the burden frameworks.