The decision in Gross is not grounded in reality. Gross v. FBL Financial Services does not reflect how discrimination and bias actually work. Gross is the US Supreme Court’s recent decision on age discrimination. For various reasons, it will probably also apply to discrimination under the Americans with Disabilities Act, also. Harold Goldner discusses its many errors in detail. Discrimination is never simple. It is never clear cut. It is often a jumble of emotions wrapped around one issue, someone’s minority background.
A manager can genuinely believe s/he is not biased. Yet, that very same manager can look at someone and wonder why he is late so often, why he does not speak as well, etc. But, the manager applies that extra scrutiny only to the minority person. And, then when the manager fires the minority person, s/he can claim to have been motivated by job issues. Under the Gross decision, the manager can claim s/he was motivated primarily by tardies, not by race. The manager wins, but the victim loses.
That is the problem with decisions like Gross. Bias is not simple. There will often be more than one motivating factor. To require that a plaintiff show that “but for” the tardies, the employee would not have been fired is asking for more than reality will allow.