GROSS v. FBL FINANCIAL SERVICES, INC.
No. 08-441
Supreme Court of the United States
Argued March 31, 2009—Decided June 18, 2009
557 U.S. 167
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Eric Schnapper argued the cause for petitioner. With him on the briefs were Beth A. Townsend and Michael J. Carroll.
Lisa S. Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were then-Acting Solicitor General Kneedler, Acting Assistant Attorney General King, Deputy Solicitor General Katyal, Dennis J. Dimsey, Angela M. Miller, James L. Lee, Carolyn L. Wheeler, and Jennifer S. Goldstein.
Carter G. Phillips argued the cause for respondent. With him on the brief were Frank Harty, Debra L. Hulett, and Jordan B. Hansell.*
JUSTICE THOMAS delivered the opinion of the Court.
The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age dis-
I
Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position—claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 15a, 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL‘s reallocation of his former job responsibilities to Kneeskern.
In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee “because of such individual‘s age.”
At the close of trial, and over FBL‘s objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims projec[t] coordinator” and
FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). See 526 F. 3d 356, 358 (2008). In Price Waterhouse, this Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended,
In accordance with Circuit precedent, the Court of Appeals identified Justice O‘Connor‘s opinion as controlling. See 526 F. 3d, at 359 (citing Erickson v. Farmland Industries, Inc., 271 F. 3d 718, 724 (CA8 2001)). Applying that standard, the Court of Appeals found that Gross needed to present “[d]irect evidence . . . sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” 526 F. 3d, at 359 (internal quotation marks omitted). In the Court of Appeals’ view, “direct evidence” is only that evidence that “show[s] a specific link between the alleged discriminatory animus and the challenged decision.” Ibid. (internal quotation marks omitted). Only upon a presentation of such evidence, the Court of Appeals held, should the burden shift to the employer “‘to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.‘” Ibid. (quoting Price Waterhouse, supra, at 276 (opinion of O‘Connor, J.)).
The Court of Appeals thus concluded that the District Court‘s jury instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor—not just “direct evidence” related to FBL‘s alleged consideration of age. See 526 F. 3d, at 360. Because Gross conceded that he had not presented direct evidence of discrimination, the Court of Appeals held that the District Court should not have given the mixed-motives instruction. Ibid. Rather, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus should have been instructed
We granted certiorari, 555 U. S. 1066 (2008), and now vacate the decision of the Court of Appeals.
II
The parties have asked us to decide whether a plaintiff must “present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.” Pet. for Cert. i. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.1 We hold that it does not.
A
Petitioner relies on this Court‘s decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA.
In Price Waterhouse, a plurality of the Court and two Justices concurring in the judgment determined that once a “plaintiff in a Title VII case proves that [the plaintiff‘s membership in a protected class] played a motivating part in an
This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U. S. 389, 393 (2008). Unlike Title VII, the ADEA‘s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add
We cannot ignore Congress’ decision to amend Title VII‘s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.
B
Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541
The words “because of” mean “by reason of: on account of.” 1 Webster‘s Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining “because of” to mean “[b]y reason of, on account of” (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining “because” to mean “by reason; on account“). Thus, the ordinary meaning of the ADEA‘s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (explaining that the claim “cannot succeed unless the employee‘s protected trait actually played a role in [the employer‘s decisionmaking] process and had a determinative influence on the outcome” (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer‘s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 653–654 (2008) (recognizing that the phrase, “by reason of,” requires at least a showing of “but for” causation (internal quotation marks omitted)); Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 63–64, and n. 14 (2007) (observing that “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship and thus a necessary logical condition” and that the statutory phrase, “based on,” has the same meaning as the phrase, “because of” (internal quotation marks omitted)); cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984)
It follows, then, that under
Hence, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may
III
Finally, we reject petitioner‘s contention that our interpretation of the ADEA is controlled by Price Waterhouse, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims.5 In any event, it is far from clear that the Court would have the same approach were it to consider the question today in the first
Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. For example, in cases tried to a jury, courts have found it particularly difficult to craft an instruction to explain its burden-shifting framework. See, e. g., Tyler v. Bethlehem Steel Corp., 958 F. 2d 1176, 1179 (CA2 1992) (referring to “the murky water of shifting burdens in discrimination cases“); Visser v. Packer Engineering Associates, Inc., 924 F. 2d 655, 661 (CA7 1991) (en banc) (Flaum, J., dissenting) (“The difficulty judges have in formulating [burden-shifting] instructions and jurors have in applying them can be seen in the fact that jury verdicts in ADEA cases are supplanted by judgments notwithstanding the verdict or reversed on appeal more frequently than jury verdicts generally“). Thus, even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47 (1977) (reevaluating precedent that was subject to criticism and “continuing controversy and confusion“); Payne v. Tennessee, 501 U. S. 808, 839–844 (1991) (SOUTER, J., concurring).6
We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
The Age Discrimination in Employment Act of 1967 (ADEA),
I
The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide.1 Instead, the question arose for the first time in respondent‘s brief, which asked us to “overrule Price Waterhouse with respect to its application to the ADEA.” Brief for Respondent 26 (boldface type deleted). In the usual course, this Court would not entertain such a request raised only in a merits brief: “‘We would normally expect notice of an intent to make so far-reaching an argument in the respondent‘s opposition to a petition for certiorari, cf. this Court‘s Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.‘” Alabama v. Shelton, 535 U. S. 654, 660, n. 3 (2002) (quoting South Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999)). Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.2
In Price Waterhouse, we concluded that the words “‘because of’ such individual‘s . . . sex . . . mean that gender must be irrelevant to employment decisions.” 490 U. S., at 240 (plurality opinion) (emphasis deleted); see also id., at 260 (White, J., concurring in judgment). To establish a violation of Title VII, we therefore held, a plaintiff had to prove that her sex was a motivating factor in an adverse employment decision.3 We recognized that the employer had an affirmative defense: It could avoid a finding of liability by proving
Today, however, the Court interprets the words “because of” in the ADEA “as colloquial shorthand for ‘but-for’ causation.” Ibid. That the Court is construing the ADEA rather than Title VII does not justify this departure from precedent. The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII‘s language apply “with equal force in the context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title VII.‘” Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121 (1985) (quoting Lorillard v. Pons, 434 U. S. 575, 584 (1978)). See generally Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427, 428 (1973) (per curiam). For this reason, JUSTICE KENNEDY‘s dissent in Price Waterhouse assumed the plurality‘s mixed-motives framework extended to the ADEA, see 490 U. S., at 292, and the Courts of Appeals
The Court nonetheless suggests that applying Price Waterhouse would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993), that “[a disparate-treatment] claim ‘cannot succeed unless the employee‘s protected trait actually played a role in [the employer‘s decisionmaking] process and had a determinative influence on the outcome.‘” Ante, at 176. The italicized phrase is at best inconclusive as to the meaning of the ADEA‘s “because of” language, however, as other passages in Hazen Paper Co. demonstrate. We also stated, for instance, that the ADEA “requires the employer to ignore an employee‘s age,” 507 U. S., at 612 (emphasis added), and noted that “[w]hen the employer‘s decision is wholly motivated by factors other than age,” there is no violation, id., at 611 (emphasis altered). So too, we indicated the “possibility of dual liability under [the Employee Retirement Income Security Act of 1974] and the ADEA where the decision to fire the employee was motivated both by the employee‘s age and by his pension status,” id., at 613—a classic mixed-motives scenario.
Moreover, both Hazen Paper Co. and Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000), on which the majority also relies, support the conclusion that the ADEA
II
The conclusion that “because of” an individual‘s age means that age was a motivating factor in an employment decision is bolstered by Congress’ reaction to Price Waterhouse in the 1991 Civil Rights Act. As part of its response to “a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws,” H. R. Rep. No. 102–40, pt. 2, p. 2 (1991) (hereinafter H. R. Rep.), Congress eliminated the affirmative defense to liability that Price Waterhouse had furnished employers and provided instead that an employer‘s same-decision showing would limit only a plaintiff‘s remedies. See
Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the
Our recent decision in Smith v. City of Jackson, 544 U. S. 228, 240 (2005), is precisely on point, as we considered in that case the effect of Congress’ failure to amend the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provisions in the 1991 Act. Noting that “the relevant 1991 amendments expanded the coverage of Title VII [but] did not amend the ADEA or speak to the subject of age discrimination,” we held that ”Wards Cove‘s pre-1991 interpretation of Title VII‘s identical language remains applicable to the ADEA.” Ibid. (discussing Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989)); see also Meacham v. Knolls Atomic Power Laboratory, 554 U. S. 84, 98 (2008). If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies.
Curiously, the Court reaches the opposite conclusion, relying on Congress’ partial ratification of Price Waterhouse to argue against that case‘s precedential value. It reasons that if the 1991 amendments do not apply to the ADEA, Price Waterhouse likewise must not apply because Congress effectively codified Price Waterhouse‘s holding in the amendments. Ante, at 173–175. This does not follow. To the contrary, the fact that Congress endorsed this Court‘s
The 1991 amendments to Title VII also provide the answer to the majority‘s argument that the mixed-motives approach has proved unworkable. Ante, at 179. Because Congress has codified a mixed-motives framework for Title VII cases—the vast majority of antidiscrimination lawsuits—the Court‘s concerns about that framework are of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would not reach today‘s decision, which will further complicate every case in which a plaintiff raises both ADEA and Title VII claims.
The Court‘s resurrection of the but-for causation standard is unwarranted. Price Waterhouse repudiated that standard 20 years ago, and Congress’ response to our decision further militates against the crabbed interpretation the Court adopts today. The answer to the question the Court has elected to take up—whether a mixed-motives jury instruction is ever proper in an ADEA case—is plainly yes.
III
Although the Court declines to address the question we granted certiorari to decide, I would answer that question by following our unanimous opinion in Desert Palace, Inc. v.
The source of the direct-evidence debate is Justice O‘Connor‘s opinion concurring in the judgment in Price Waterhouse. Writing only for herself, Justice O‘Connor argued that a plaintiff should be required to introduce “direct evidence” that her sex motivated the decision before the plurality‘s mixed-motives framework would apply. 490 U. S., at 276.7 Many courts have treated Justice O‘Connor‘s opinion in Price Waterhouse as controlling for both Title VII and ADEA mixed-motives cases in light of our statement in Marks v. United States, 430 U. S. 188, 193 (1977), that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.‘” Unlike the cases Marks addressed, however, Price Waterhouse garnered five votes for a single rationale: Justice White agreed with the plurality as to the motivating-factor test, see supra, at 182, n. 3; he disagreed only as to the type of evidence an employer was required to submit to prove that the same result would have occurred absent the unlawful motivation. Taking the plurality to demand objective evidence, he wrote separately to express his view that an employer‘s credible testimony could suffice. 490 U. S., at 261. Because Justice White provided a fifth vote for the “rationale explaining the result” of the Price Waterhouse decision, Marks, 430 U. S., at 193, his concurrence is properly understood as controlling, and he,
Any questions raised by Price Waterhouse as to a direct-evidence requirement were settled by this Court‘s unanimous decision in Desert Palace, in which we held that a plaintiff need not introduce direct evidence to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing the language of
Our analysis in Desert Palace applies with equal force to the ADEA. Cf. ante, at 178, n. 4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct-evidence requirement, and we have specifically recognized the utility of circumstantial evidence in ADEA cases. See Reeves, 530 U. S., at 147 (cited by Desert Palace, 539 U. S., at 99–100). Moreover, in Hazen Paper Co., we held that an award of liquidated damages for a “willful” violation of the ADEA did not require proof of the employer‘s motivation through direct evidence, 507 U. S., at 615, and we have similarly rejected the imposition of special evidentiary rules in other ADEA cases. See, e. g., Swierkiewicz v. Sorema N. A., 534 U. S. 506 (2002); O‘Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308 (1996). Desert Palace thus confirms the answer provided by the plurality
IV
The Court‘s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. The but-for standard the Court adopts was rejected by this Court in Price Waterhouse and by Congress in the Civil Rights Act of 1991. Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent.
JUSTICE BREYER, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, dissenting.
I agree with JUSTICE STEVENS that mixed-motive instructions are appropriate in the Age Discrimination in Employment Act of 1967 context. And I join his opinion. The Court rejects this conclusion on the ground that the words “because of” require a plaintiff to prove that age was the “but-for” cause of his employer‘s adverse employment action. Ante, at 176–177. But the majority does not explain why this is so. The words “because of” do not inherently require a showing of “but-for” causation, and I see no reason to read them to require such a showing.
It is one thing to require a typical tort plaintiff to show “but-for” causation. In that context, reasonably objective scientific or commonsense theories of physical causation make the concept of “but-for” causation comparatively easy to understand and relatively easy to apply. But it is an entirely different matter to determine a “but-for” relation when we consider, not physical forces, but the mind-related characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more often we ascribe motives, after an event, to an individual in light
All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer‘s decision. And the fact that a jury has found that age did play a role in the decision justifies the use of the word “because,” i. e., the employer dismissed the employee because of his age (and other things). See Price Waterhouse v. Hopkins, 490 U. S. 228, 239–242 (1989) (plurality opinion). I therefore would see nothing wrong in concluding that the plaintiff has established a violation of the statute.
But the law need not automatically assess liability in these circumstances. In Price Waterhouse, the plurality recognized an affirmative defense where the defendant could show that the employee would have been dismissed regardless. The law permits the employer this defense, not because the forbidden motive, age, had no role in the actual decision, but because the employer can show that he would have dismissed the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the showing of a violation, precisely because the defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation. See id., at 242; cf. ante, at 185 (STEVENS, J., dissenting) (describing
The instruction that the District Court gave seems appropriate and lawful. It says, in pertinent part:
“Your verdict must be for plaintiff if all the following elements have been proved by the preponderance of the evidence:
· · · · ·
“[The] plaintiff‘s age was a motivating factor in defendant‘s decision to demote plaintiff.
“However, your verdict must be for defendant . . . if it has been proved by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age.
· · · · ·
“As used in these instructions, plaintiff‘s age was ‘a motivating factor,’ if plaintiff‘s age played a part or a role in the defendant‘s decision to demote plaintiff. However, plaintiff‘s age need not have been the only reason for defendant‘s decision to demote plaintiff.” App. 9–10.
For these reasons as well as for those set forth by JUSTICE STEVENS, I respectfully dissent.