Federal appeals court: mixed motive analysis still OK in state age discrimination cases

The First Circuit Court of Appeals found recently that plaintiffs alleging age discrimination under state law do not need to satisfy the more onerous burden of proof established by the Supreme Court for federal age discrimination cases. In Diaz v. Jiten Hotel Management, the Court of Appeals affirmed a jury verdict in favor of a hotel worker on her state law age discrimination claim for which the district court had allowed a "mixed-motive" jury instruction. Proving discrimination based on a "mixed-motive" analysis requires showing that an unlawful consideration – here, age – was a motivating factor in the adverse employment decision. If the plaintiff establishes this, then the defendant must prove that it would have reached the same decision absent the unlawful consideration. The Supreme Court in Gross v. FBL Fin. Services has ruled that a mixed-motive analysis is not permitted under the federal Age Discrimination in Employment Act, meaning that a plaintiff under the federal statute must prove that age was the "but for" cause of the employment action. Under Chapter 151B, the state anti-discrimination statute that covers age discrimination, a mixed-motive analysis is still permitted.