Gross v. FBL Financial Services, Inc.

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GROSS v. FBL FINANCIAL SERVICES, INC.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 08–441. Argued March 31, 2009—Decided June 18, 2009

Petitioner Gross filed suit, alleging that respondent (FBL) demoted him

in violation of the Age Discrimination in Employment Act of 1967

(ADEA), which makes it unlawful for an employer to take adverse ac

tion against an employee “because of such individual’s age,” 29

U. S. C. §623(a). At the close of trial, and over FBL’s objections, the

District Court instructed the jury to enter a verdict for Gross if he

proved, by a preponderance of the evidence, that he was demoted and

his age was a motivating factor in the demotion decision, and told the

jury that age was a motivating factor if it played a part in the demo

tion. It also instructed the jury to return a verdict for FBL if it

proved that it would have demoted Gross regardless of age. The jury

returned a verdict for Gross. The Eighth Circuit reversed and re

manded for a new trial, holding that the jury had been incorrectly in

structed under the standard established in Price Waterhouse v. Hop

kins, 490 U. S. 228, for cases under Title VII of the Civil Rights Act of

1964 when an employee alleges that he suffered an adverse employ

ment action because of both permissible and impermissible consid

erations—i.e., a “mixed-motives” case.

Held: A plaintiff bringing an ADEA disparate-treatment claim 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 pro

duced some evidence that age was one motivating factor in that deci

sion. Pp. 4–12.

(a) Because Title VII is materially different with respect to the

relevant burden of persuasion, this Court’s interpretation of the

ADEA is not governed by Title VII decisions such as Price Water

2 GROSS v. FBL FINANCIAL SERVICES, INC.

Syllabus

house and Desert Palace, Inc. v. Costa, 539 U. S. 90, 94–95. This

Court has never applied Title VII’s burden-shifting framework to

ADEA claims and declines to do so now. When conducting statutory

interpretation, the Court “must be careful not to apply rules applica

ble under one statute to a different statute without careful and criti

cal examination.” Federal Express Corp. v. Holowecki, 552 U. S. ___,

___. Unlike Title VII, which has been amended to explicitly author

ize discrimination claims where an improper consideration was “a

motivating factor” for the adverse action, see 42 U. S. C. §§2000e–

2(m) and 2000e–5(g)(2)(B), the ADEA does not provide that a plaintiff

may establish discrimination by showing that age was simply a moti

vating factor. Moreover, Congress neglected to add such a provision

to the ADEA when it added §§2000e–2(m) and 2000e–5(g)(2)(B) to Ti

tle VII, even though it contemporaneously amended the ADEA in

several ways. When Congress amends one statutory provision but

not another, it is presumed to have acted intentionally, see EEOC v.

Arabian American Oil Co., 499 U. S. 244, 256, and “negative implica

tions raised by disparate provisions are strongest” where the provi

sions were “considered simultaneously when the language raising the

implication was inserted,” Lindh v. Murphy, 521 U. S. 320, 330.

Pp. 5–6.

(b) The ADEA’s text does not authorize an alleged mixed-motives

age discrimination claim. The ordinary meaning of the ADEA’s re

quirement 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. To establish a dispa

rate-treatment claim under this plain language, a plaintiff must

prove that age was the “but-for” cause of the employer’s adverse deci

sion. See Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. ___,

___. It follows that under §623(a)(1), the plaintiff retains the burden

of persuasion to establish that “but-for” cause. This Court has previ

ously held this to be the burden’s proper allocation in ADEA cases,

see, e.g., Kentucky Retirement Systems v. EEOC, 554 U. S. ___, ___–

___, ___–___, and nothing in the statute’s text indicates that Congress

has carved out an exception for a subset of ADEA cases. Where a

statute is “silent on the allocation of the burden of persuasion,” “the

ordinary default rule [is] that plaintiffs bear the risk of failing to

prove their claims.” Schaffer v. Weast, 546 U. S. 49, 56. Hence, the

burden of persuasion is the same in alleged mixed-motives cases as in

any other ADEA disparate-treatment action. Pp. 7–9.

(c) This Court rejects petitioner’s contention that the proper inter

pretation of the ADEA is nonetheless controlled by Price Waterhouse,

which initially established that the burden of persuasion shifted in

alleged mixed-motives Title VII claims. It is far from clear that the

Cite as: 557 U. S. ____ (2009) 3

Syllabus

Court would have the same approach were it to consider the question

today in the first instance. Whatever Price Waterhouse’s deficiencies

in retrospect, it has become evident in the years since that case was

decided that its burden-shifting framework is difficult to apply. The

problems associated with its application have eliminated any per

ceivable benefit to extending its framework to ADEA claims. Cf. Con

tinental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47. Pp. 10–11.

526 F. 3d 356, vacated and remanded.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a

dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ.,

joined. BREYER, J., filed a dissenting opinion, in which SOUTER and

GINSBURG, JJ., joined.

Cite as: 557 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–441

_________________

JACK GROSS, PETITIONER v. FBL FINANCIAL

SERVICES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 18, 2009]

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

discrimination in order to obtain a mixed-motives jury

instruction in a suit brought under the Age Discrimination

in Employment Act of 1967 (ADEA), 81 Stat. 602, as

amended, 29 U. S. C. §621 et seq. Because we hold that

such a jury instruction is never proper in an ADEA case,

we vacate the decision below.

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 reas

signed to the position of claims project coordinator. At

that same time, FBL transferred many of Gross’ job re

sponsibilities to a newly created position—claims admini

stration 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. 23a (District Court opinion). Although Gross (in his

2 GROSS v. FBL FINANCIAL SERVICES, INC.

Opinion of the Court

new position) and Kneeskern received the same compensa

tion, Gross considered the reassignment a demotion be

cause of FBL’s reallocation of his former job responsibili

ties 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 em

ployee “because of such individual’s age.” 29 U. S. C.

§623(a). The case proceeded to trial, where Gross intro

duced evidence suggesting that his reassignment was

based at least in part on his age. FBL defended its deci

sion on the grounds that Gross’ reassignment was part of

a corporate restructuring and that Gross’ new position was

better suited to his skills. See App. to Pet. for Cert. 23a

(District Court opinion).

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 that his “age was a motivating factor” in

FBL’s decision to demote him. App. 9–10. The jury was

further instructed that Gross’ age would qualify as a

“ ‘motivating factor,’ if [it] played a part or a role in [FBL]’s

decision to demote [him].” Id., at 10. The jury was also

instructed regarding FBL’s burden of proof. According to

the District Court, the “verdict must be for [FBL] . . . if it

has been proved by the preponderance of the evidence that

[FBL] would have demoted [Gross] regardless of his age.”

Ibid. The jury returned a verdict for Gross, awarding him

$46,945 in lost compensation. Id., at 8.

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

Cite as: 557 U. S. ____ (2009) 3

Opinion of the Court

(1989). See 526 F. 3d 356, 358 (2008). In Price Water

house, 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, 42

U. S. C. §2000e et seq., when an employee alleges that he

suffered an adverse employment action because of both

permissible and impermissible considerations—i.e., a

“mixed-motives” case. 490 U. S., at 232, 244–247 (plural

ity opinion). The Price Waterhouse decision was splin

tered. Four Justices joined a plurality opinion, see id., at

231–258, Justices White and O’Connor separately con

curred in the judgment, see id., at 258–261 (opinion of

White, J.); id., at 261–279 (opinion of O’Connor, J.), and

three Justices dissented, see id., at 279–295 (opinion of

KENNEDY, J.). Six Justices ultimately agreed that if a

Title VII plaintiff shows that discrimination was a “moti

vating” or a “ ‘substantial’ ” factor in the employer’s action,

the burden of persuasion should shift to the employer to

show that it would have taken the same action regardless

of that impermissible consideration. See id., at 258 (plu

rality opinion); id., at 259–260 (opinion of White, J.); id.,

at 276 (opinion of O’Connor, J.). Justice O’Connor further

found that to shift the burden of persuasion to the em

ployer, the employee must present “direct evidence that an

illegitimate criterion was a substantial factor in the [em

ployment] decision.” Id., at 276.

In accordance with Circuit precedent, the Court of Ap

peals identified Justice O’Connor’s opinion as controlling.

See 526 F. 3d, at 359 (citing Erickson v. Farmland Indus

tries, 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 find

ing by a reasonable fact finder that an illegitimate crite

rion 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

4 GROSS v. FBL FINANCIAL SERVICES, INC.

Opinion of the Court

evidence that “show[s] a specific link between the alleged

discriminatory animus and the challenged decision.” Ibid.

(internal quotation marks omitted). Only upon a presen

tation 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 illegiti

mate 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 pre

ponderance 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 only to determine whether Gross had

carried his burden of “prov[ing] that age was the deter

mining factor in FBL’s employment action.” See ibid.

We granted certiorari, 555 U. S. ___ (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 dis

crimination 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

Cite as: 557 U. S. ____ (2009) 5

Opinion of the Court

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 rele

vant 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 employment decision, the defendant may avoid a

finding of liability only by proving by a preponderance of

the evidence that it would have made the same decision

even if it had not taken [that factor] into account.” 490

U. S., at 258; see also id., at 259–260 (opinion of White,

J.); id., at 276 (opinion of O’Connor, J.). But as we ex

plained in Desert Palace, Inc. v. Costa, 539 U. S. 90, 94–95

(2003), Congress has since amended Title VII by explicitly

authorizing discrimination claims in which an improper

consideration was “a motivating factor” for an adverse

employment decision. See 42 U. S. C. §2000e–2(m) (pro

viding that “an unlawful employment practice is estab

lished when the complaining party demonstrates that

——————

1 Although the parties did not specifically frame the question to in

clude this threshold inquiry, “[t]he statement of any question presented

is deemed to comprise every subsidiary question fairly included

therein.” This Court’s Rule 14.1; see also City of Sherrill v. Oneida

Indian Nation of N. Y., 544 U. S. 197, 214, n. 8 (2005) (“ ‘Questions not

explicitly mentioned but essential to the analysis of the decisions below

or to the correct disposition of the other issues have been treated as

subsidiary issues fairly comprised by the question presented’ ” (quoting

R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice

414 (8th ed. 2002))); Ballard v. Commissioner, 544 U. S. 40, 46–47, and

n. 2 (2005) (evaluating “a question anterior” to the “questions the

parties raised”).

6 GROSS v. FBL FINANCIAL SERVICES, INC.

Opinion of the Court

race, color, religion, sex, or national origin was a motivat

ing factor for any employment practice, even though other

factors also motivated the practice” (emphasis added));

§2000e–5(g)(2)(B) (restricting the remedies available to

plaintiffs proving violations of §2000e–2(m)).

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. ___, ___ (2008) (slip op., at 2). Unlike Title VII, the

ADEA’s text does not provide that a plaintiff may estab

lish 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 §§2000e–2(m) and 2000e–5(g)(2)(B), even though it

contemporaneously amended the ADEA in several ways,

see Civil Rights Act of 1991, §115, 105 Stat. 1079; id.,

§302, at 1088.

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 provi

sion but not another, it is presumed to have acted inten

tionally. See EEOC v. Arabian American Oil Co., 499

U. S. 244, 256 (1991). Furthermore, as the Court has

explained, “negative implications raised by disparate

provisions are strongest” when the provisions were “con

sidered simultaneously when the language raising the

implication was inserted.” Lindh v. Murphy, 521 U. S.

320, 330 (1997). As a result, the Court’s interpretation of

the ADEA is not governed by Title VII decisions such as

Desert Palace and Price Waterhouse.2

——————

2 JUSTICE STEVENS argues that the Court must incorporate its past

interpretations of Title VII into the ADEA because “the substantive

Cite as: 557 U. S. ____ (2009) 7

Opinion of the Court

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 con

struction must begin with the language employed by

Congress and the assumption that the ordinary meaning

of that language accurately expresses the legislative pur

pose.” Engine Mfrs. Assn. v. South Coast Air Quality

Management Dist., 541 U. S. 246, 252 (2004) (internal

quotation marks omitted). The ADEA provides, in rele

vant part, that “[i]t shall be unlawful for an employer . . .

to fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with re

spect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s age.” 29

U. S. C. §623(a)(1) (emphasis added).

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)

——————

provisions of the ADEA were derived in haec verba from Title VII,” post,

at 4 (dissenting opinion) (internal quotation marks omitted), and

because the Court has frequently applied its interpretations of Title VII

to the ADEA, see post, at 4–6. But the Court’s approach to interpreting

the ADEA in light of Title VII has not been uniform. In General Dy

namics Land Systems, Inc. v. Cline, 540 U. S. 581 (2004), for example,

the Court declined to interpret the phrase “because of . . . age” in 29

U. S. C. §623(a) to bar discrimination against people of all ages, even

though the Court had previously interpreted “because of . . . race [or]

sex” in Title VII to bar discrimination against people of all races and

both sexes, see 540 U. S., at 584, 592, n. 5. And the Court has not

definitively decided whether the evidentiary framework of McDonnell

Douglas Corp. v. Green, 411 U. S. 792 (1973), utilized in Title VII cases

is appropriate in the ADEA context. See Reeves v. Sanderson Plumbing

Products, Inc., 530 U. S. 133, 142 (2000); O’Connor v. Consolidated Coin

Caterers Corp., 517 U. S. 308, 311 (1996). In this instance, it is the

textual differences between Title VII and the ADEA that prevent us

from applying Price Waterhouse and Desert Palace to federal age

discrimination claims.

8 GROSS v. FBL FINANCIAL SERVICES, INC.

Opinion of the Court

(defining “because of” to mean “By 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 mean

ing of the ADEA’s requirement that an employer took

adverse action “because of” age is that age was the “rea

son” 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 decisionmak

ing] 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. ___, ___ (2008)

(slip op., at 14) (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 neces

sary 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) (“An act or omission is not

regarded as a cause of an event if the particular event

would have occurred without it”).3

——————

3 JUSTICE BREYER contends that there is “nothing unfair or impracti

cal” about hinging liability on whether “forbidden motive . . . play[ed] a

role in the employer’s decision.” Post, at 2–3 (dissenting opinion). But

that is a decision for Congress to make. See Florida Dept. of Revenue v.

Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 18).

Congress amended Title VII to allow for employer liability when

discrimination “was a motivating factor for any employment practice,

Cite as: 557 U. S. ____ (2009) 9

Opinion of the Court

It follows, then, that under §623(a)(1), the plaintiff

retains the burden of persuasion to establish that age was

the “but-for” cause of the employer’s adverse action. In

deed, we have previously held that the burden is allocated

in this manner in ADEA cases. See Kentucky Retirement

Systems v. EEOC, 554 U. S. ___, ___–___, ___–___ (2008)

(slip op., at 2–4, 11–13); Reeves v. Sanderson Plumbing

Products, Inc., 530 U. S. 133, 141, 143 (2000). And noth

ing in the statute’s text indicates that Congress has carved

out an exception to that rule for a subset of ADEA cases.

Where the statutory text is “silent on the allocation of the

burden of persuasion,” we “begin with the ordinary default

rule that plaintiffs bear the risk of failing to prove their

claims.” Schaffer v. Weast, 546 U. S. 49, 56 (2005); see

also Meacham v. Knolls Atomic Power Laboratory, 554

U. S. ___, ___ (2008) (slip op., at 6) (“Absent some reason

to believe that Congress intended otherwise, . . . we will

conclude that the burden of persuasion lies where it usu

ally falls, upon the party seeking relief” (internal quota

tion marks omitted)). We have no warrant to depart from

the general rule in this setting.

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 be direct or circumstantial), that age was the

“but-for” cause of the challenged employer decision. See

Reeves, supra, at 141–143, 147.4

——————

even though other factors also motivated the practice,” 42 U. S. C.

§2000e–2(m) (emphasis added), but did not similarly amend the ADEA,

see supra, at 5–6. We must give effect to Congress’ choice. See 14 Penn

Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 21).

4 Because we hold that ADEA plaintiffs retain the burden of persua

sion to prove all disparate-treatment claims, we do not need to address

whether plaintiffs must present direct, rather than circumstantial,

evidence to obtain a burden-shifting instruction. There is no height

10 GROSS v. FBL FINANCIAL SERVICES, INC.

Opinion of the Court

III

Finally, we reject petitioner’s contention that our inter

pretation 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 instance. Cf. 14 Penn Plaza LLC v. Pyett, 556

U. S. ___, ___ (2009) (slip op., at 21) (declining to “intro

duc[e] a qualification into the ADEA that is not found in

its text”); Meacham, supra, at ___ (slip op., at 16) (explain

ing that the ADEA must be “read . . . the way Congress

wrote it”).

——————

ened evidentiary requirement for ADEA plaintiffs to satisfy their

burden of persuasion that age was the “but-for” cause of their em

ployer’s adverse action, see 29 U. S. C. §623(a), and we will imply none.

“Congress has been unequivocal when imposing heightened proof

requirements” in other statutory contexts, including in other subsec

tions within Title 29, when it has seen fit. See Desert Palace, Inc. v.

Costa, 539 U. S. 90, 99 (2003); see also, e.g., 25 U. S. C. §2504(b)(2)(B)

(imposing “clear and convincing evidence” standard); 29 U. S. C.

§722(a)(2)(A) (same).

5 JUSTICE STEVENS also contends that we must apply Price Water

house under the reasoning of Smith v. City of Jackson, 544 U. S. 228

(2005). See post, at 7. In Smith, the Court applied to the ADEA its

pre-1991 interpretation of Title VII with respect to disparate-impact

claims despite Congress’ 1991 amendment adding disparate-impact

claims to Title VII but not the ADEA. 544 U. S., at 240. But the

amendments made by Congress in this same legislation, which added

the “motivating factor” language to Title VII, undermine JUSTICE

STEVENS’ argument. Congress not only explicitly added “motivating

factor” liability to Title VII, see supra, at 5–6, but it also partially

abrogated Price Waterhouse’s holding by eliminating an employer’s

complete affirmative defense to “motivating factor” claims, see 42

U. S. C. §2000e–5(g)(2)(B). If such “motivating factor” claims were

already part of Title VII, the addition of §2000e–5(g)(2)(B) alone would

have been sufficient. Congress’ careful tailoring of the “motivating

factor” claim in Title VII, as well as the absence of a provision parallel

to §2000e–2(m) in the ADEA, confirms that we cannot transfer the

Price Waterhouse burden-shifting framework into the ADEA.

Cite as: 557 U. S. ____ (2009) 11

Opinion of the Court

Whatever the deficiencies of Price Waterhouse in retro

spect, 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 Asso

ciates, 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 notwith

standing the verdict or reversed on appeal more frequently

than jury verdicts generally”). Thus, even if Price Water

house 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

——————

6 Gross points out that the Court has also applied a burden-shifting

framework to certain claims brought in contexts other than pursuant to

Title VII. See Brief for Petitioner 54–55 (citing, inter alia, NLRB v.

Transportation Management Corp., 462 U. S. 393, 401–403 (1983)

(claims brought under the National Labor Relations Act (NLRA)); Mt.

Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (constitu

tional claims)). These cases, however, do not require the Court to adopt

his contra statutory position. The case involving the NLRA did not

require the Court to decide in the first instance whether burden shift

ing should apply as the Court instead deferred to the National Labor

Relation Board’s determination that such a framework was appropri

ate. See NLRB, supra, at 400–403. And the constitutional cases such

as Mt. Healthy have no bearing on the correct interpretation of ADEA

12 GROSS v. FBL FINANCIAL SERVICES, INC.

Opinion of the Court

IV

We hold that a plaintiff bringing a disparate-treatment

claim pursuant to the ADEA must prove, by a preponder

ance 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.

——————

claims, which are governed by statutory text.

Cite as: 557 U. S. ____ (2009) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–441

_________________

JACK GROSS, PETITIONER v. FBL FINANCIAL

SERVICES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 18, 2009]

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE

GINSBURG, and JUSTICE BREYER join, dissenting.

The Age Discrimination in Employment Act of 1967

(ADEA), 29 U. S. C. §621 et seq., makes it unlawful for an

employer to discriminate against any employee “because

of” that individual’s age, §623(a). The most natural read

ing of this statutory text prohibits adverse employment

actions motivated in whole or in part by the age of the

employee. The “but-for” causation standard endorsed by

the Court today was advanced in JUSTICE KENNEDY’s

dissenting opinion in Price Waterhouse v. Hopkins, 490

U. S. 228, 279 (1989), a case construing identical language

in Title VII of the Civil Rights Act of 1964, 42 U. S. C.

§2000e–2(a)(1). Not only did the Court reject the but-for

standard in that case, but so too did Congress when it

amended Title VII in 1991. Given this unambiguous his

tory, it is particularly inappropriate for the Court, on its

own initiative, to adopt an interpretation of the causation

requirement in the ADEA that differs from the established

reading of Title VII. I disagree not only with the Court’s

interpretation of the statute, but also with its decision to

engage in unnecessary lawmaking. I would simply answer

the question presented by the certiorari petition and hold

that a plaintiff need not present direct evidence of age

discrimination to obtain a mixed-motives instruction.

2 GROSS v. FBL FINANCIAL SERVICES, INC.

STEVENS, J., dissenting

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 respon

dent’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 prepa

ration time for those likely affected and wishing to partici

pate.’ ” 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

Unfortunately, the majority’s inattention to prudential

Court practices is matched by its utter disregard of our

precedent and Congress’ intent. The ADEA provides that

“[i]t shall be unlawful for an employer . . . to fail or refuse

to hire or to discharge any individual or otherwise dis

criminate against any individual with respect to his com

——————

1 “Thequestion presented by the petitioner in this case is whether a

plaintiff must present direct evidence of age discrimination in order to

obtain a mixed-motives jury instruction in a suit brought under the

[ADEA].” Ante, at 1.

2 The United States filed an amicus curiae brief supporting petitioner

on the question presented. At oral argument, the Government urged

that the Court should not reach the issue it takes up today. See Tr. of

Oral Arg. 20–21, 28–29.

Cite as: 557 U. S. ____ (2009) 3

STEVENS, J., dissenting

pensation, terms, conditions, or privileges of employment,

because of such individual’s age.” 29 U. S. C. §623(a)(1)

(emphasis added). As we recognized in Price Waterhouse

when we construed the identical “because of” language of

Title VII, see 42 U. S. C. §2000e–2(a)(1) (making it unlaw

ful for an employer “to fail or refuse to hire or to discharge

any individual . . . with respect to his compensation,

terms, conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national

origin” (emphasis added)), the most natural reading of the

text proscribes adverse employment actions motivated in

whole or in part by the age of the employee.

In Price Waterhouse, we concluded that the words “ ‘be

cause of’ such individual’s . . . sex . . . mean that gender

must be irrelevant to employment decisions.” 490 U. S., at

240 (plurality opinion); 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 deci

sion.3 We recognized that the employer had an affirmative

defense: It could avoid a finding of liability by proving that

it would have made the same decision even if it had not

taken the plaintiff’s sex into account. Id., at 244–245

(plurality opinion). But this affirmative defense did not

alter the meaning of “because of.” As we made clear, when

“an employer considers both gender and legitimate factors

at the time of making a decision, that decision was ‘be

——————

3 Although Justice White stated that the plaintiff had to show that

her sex was a “substantial” factor, while the plurality used the term

“motivating” factor, these standards are interchangeable, as evidenced

by Justice White’s quotation of Mt. Healthy City Bd. of Ed. v. Doyle, 429

U. S. 274, 287 (1977): “ ‘[T]he burden was properly placed upon [the

plaintiff to show that the illegitimate criterion] was a “substantial

factor”—or, to put it in other words, that it was a “motivating factor” ’ ”

in the adverse decision. Price Waterhouse, 490 U. S., at 259 (emphasis

added); see also id., at 249 (plurality opinion) (using “substantial” and

“motivating” interchangeably).

4 GROSS v. FBL FINANCIAL SERVICES, INC.

STEVENS, J., dissenting

cause of’ sex.” Id., at 241; see also id., at 260 (White, J.,

concurring in judgment). We readily rejected the dissent’s

contrary assertion. “To construe the words ‘because of ’ as

colloquial shorthand for ‘but-for’ causation,” we said, “is to

misunderstand them.” Id., at 240 (plurality opinion).4

Today, however, the Court interprets the words “be

cause 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 interpreta

tions of Title VII’s language apply “with equal force in the

context of age discrimination, for the substantive provi

sions 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 to have considered the issue

unanimously have applied Price Waterhouse to ADEA

claims.5

——————

4 We were no doubt aware that dictionaries define “because of” as “by

reason of” or “on account of.” Ante, at 7–8. Contrary to the majority’s

bald assertion, however, this does not establish that the term denotes

but-for causation. The dictionaries the Court cites do not, for instance,

define “because of” as “solely by reason of” or “exclusively on account of.”

In Price Waterhouse, we recognized that the words “because of” do not

mean “solely because of,” and we held that the inquiry “commanded by

the words” of the statute was whether gender was a motivating factor

in the employment decision. 490 U. S., at 241 (plurality opinion).

5 See Febres v. Challenger Caribbean Corp., 214 F. 3d 57 (CA1 2000);

Ostrowski v. Atlantic Mut. Ins. Cos., 968 F. 2d 171 (CA2 1992);

Starceski v. Westinghouse Elec. Corp., 54 F. 3d 1089 (CA3 1995); EEOC

v. Warfield-Rohr Casket Co., 364 F. 3d 160 (CA4 2004); Rachid v. Jack

Cite as: 557 U. S. ____ (2009) 5

STEVENS, J., dissenting

The Court nonetheless suggests that applying Price

Waterhouse would be inconsistent with our ADEA prece

dents. 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 determina

tive influence on the outcome.’ ” Ante, at 8. 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,” id., at 612 (emphasis added), and

noted that “[w]hen the employer’s decision is wholly moti

vated by factors other than age,” there is no violation, id.,

at 611 (emphasis altered). So too, we indicated the “possi

bility of dual liability under ERISA 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. Sander

son Plumbing Products, Inc., 530 U. S. 133 (2000), on

which the majority also relies, support the conclusion that

the ADEA should be interpreted consistently with Title

VII. In those non-mixed-motives ADEA cases, the Court

followed the standards set forth in non-mixed-motives

Title VII cases including McDonnell Douglas Corp. v.

Green, 411 U. S. 792 (1973), and Texas Dept. of Commu

nity Affairs v. Burdine, 450 U. S. 248 (1981). See, e.g.,

Reeves, 530 U. S., at 141–143; Hazen Paper Co., 507 U. S.,

——————

In The Box, Inc., 376 F. 3d 305 (CA5 2004); Wexler v. White’s Fine

Furniture, Inc., 317 F. 3d 564 (CA6 2003); Visser v. Packer Eng. Assocs.,

Inc., 924 F. 2d 655 (CA7 1991) (en banc); Hutson v. McDonnell Douglas

Corp., 63 F. 3d 771 (CA8 1995); Lewis v. YMCA, 208 F. 3d 1303 (CA11

2000) (per curiam); see also Gonzagowski v. Widnall, 115 F. 3d 744, 749

(CA10 1997).

6 GROSS v. FBL FINANCIAL SERVICES, INC.

STEVENS, J., dissenting

at 610. This by no means indicates, as the majority rea

sons, that mixed-motives ADEA cases should follow those

standards. Rather, it underscores that ADEA standards

are generally understood to conform to Title VII standards.

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 Water

house 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 elimi

nated the affirmative defense to liability that Price Water

house had furnished employers and provided instead that

an employer’s same-decision showing would limit only a

plaintiff’s remedies. See §2000e–5(g)(2)(B). Importantly,

however, Congress ratified Price Waterhouse’s interpreta

tion of the plaintiff’s burden of proof, rejecting the dis

sent’s suggestion in that case that but-for causation was

the proper standard. See §2000e–2(m) (“[A]n unlawful

employment practice is established when the complaining

party demonstrates that race, color, religion, sex, or na

tional origin was a motivating factor for any employment

practice, even though other factors also motivated the

practice”).

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 ADEA.6 But it proceeds to ignore the conclusion com

——————

6 There is, however, some evidence that Congress intended the 1991

mixed-motives amendments to apply to the ADEA as well. See H. R.

Rep., pt. 2, at 4 (noting that a “number of other laws banning discrimi

nation, including . . . the Age Discrimination in Employment Act

(ADEA), 29 U. S. C. §621, et seq., are modeled after and have been

Cite as: 557 U. S. ____ (2009) 7

STEVENS, J., dissenting

pelled by this interpretation of the Act: Price Waterhouse’s

construction of “because of” remains the governing law for

ADEA claims.

Our recent decision in Smith v. City of Jackson, 544

U. S. 228, 240 (2005), is precisely on point, as we consid

ered 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.”

544 U. S., at 240 (discussing Wards Cove Packing Co. v.

Atonio, 490 U. S. 642 (1989)); see also Meacham v. Knolls

Atomic Power Laboratory, 554 U. S. ___, ___ (2008) (slip

op., at 15). 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 Water

house 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 5–6. This does not follow. To

the contrary, the fact that Congress endorsed this Court’s

interpretation of the “because of” language in Price Water

house (even as it rejected the employer’s affirmative de

——————

interpreted in a manner consistent with Title VII,” and that “these

other laws modeled after Title VII [should] be interpreted consistently

in a manner consistent with Title VII as amended by this Act,” includ

ing the mixed-motives provisions).

8 GROSS v. FBL FINANCIAL SERVICES, INC.

STEVENS, J., dissenting

fense to liability) provides all the more reason to adhere to

that decision’s motivating-factor test. Indeed, Congress

emphasized in passing the 1991 Act that the motivating

factor test was consistent with its original intent in enact

ing Title VII. See, e.g., H. R. Rep., pt. 2, at 17 (“When

enacting the Civil Rights Act of 1964, Congress made clear

that it intended to prohibit all invidious consideration of

sex, race, color, religion, or national origin in employment

decisions”); id., at 2 (stating that the Act “reaffirm[ed] that

any reliance on prejudice in making employment decisions

is illegal”); see also H. R. Rep., pt. 1, at 45; S. Rep. No.

101–315, pp. 6, 22 (1990).

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 10–11. Be

cause 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 diffi

culties 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 stan

dard is unwarranted. Price Waterhouse repudiated that

standard 20 years ago, and Congress’ response to our

decision further militates against the crabbed interpreta

tion 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.

Cite as: 557 U. S. ____ (2009) 9

STEVENS, J., dissenting

v. Costa, 539 U. S. 90 (2003). I would accordingly hold

that a plaintiff need not present direct evidence of age

discrimination to obtain a mixed-motives instruction.

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 Jus

tice 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 Water

house garnered five votes for a single rationale: Justice

White agreed with the plurality as to the motivating-factor

test, see supra, at 3, 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 concur

——————

7 While Justice O’Connor did not define precisely what she meant by

“direct evidence,” we contrasted such evidence with circumstantial

evidence in Desert Palace, Inc. v. Costa, 539 U. S. 90 (2003). That

Justice O’Connor might have intended a different definition does not

affect my conclusion, as I do not believe a plaintiff is required to intro

duce any special type of evidence to obtain a mixed-motives instruction.

10 GROSS v. FBL FINANCIAL SERVICES, INC.

STEVENS, J., dissenting

rence is properly understood as controlling, and he, like

the plurality, did not require the introduction of direct

evidence.

Any questions raised by Price Waterhouse as to a direct

evidence requirement were settled by this Court’s unani

mous 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 §2000e–2(m), we reasoned that the statute

did not mention, much less require, a heightened showing

through direct evidence and that “Congress has been

unequivocal when imposing heightened proof require

ments.” 539 U. S., at 99. The statute’s silence with re

spect to direct evidence, we held, meant that “we should

not depart from the ‘[c]onventional rul[e] of civil litigation

. . . [that] requires a plaintiff to prove his case by a pre

ponderance of the evidence’, . . . using ‘direct or circum

stantial evidence.’ ” Ibid. (quoting Price Waterhouse, 490

U. S., at 253 (plurality opinion), and Postal Service Bd. of

Governors v. Aikens, 460 U. S. 711 (1983)). We also recog

nized the Court’s consistent acknowledgment of the utility

of circumstantial evidence in discrimination cases.

Our analysis in Desert Palace applies with equal force to

the ADEA. Cf. ante, at 9–10, n. 4. As with the 1991

amendments to Title VII, no language in the ADEA im

poses 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.

Cite as: 557 U. S. ____ (2009) 11

STEVENS, J., dissenting

506 (2002); O’Connor v. Consolidated Coin Caterers Corp.,

517 U. S. 308 (1996). Desert Palace thus confirms the

answer provided by the plurality and Justice White in

Price Waterhouse: An ADEA plaintiff need not present

direct evidence of discrimination to obtain a mixed

motives instruction.

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 respect

fully dissent.

Cite as: 557 U. S. ____ (2009) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–441

_________________

JACK GROSS, PETITIONER v. FBL FINANCIAL

SERVICES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 18, 2009]

JUSTICE BREYER, with whom JUSTICE SOUTER and

JUSTICE GINSBURG join, dissenting.

I agree with JUSTICE STEVENS that mixed-motive in

structions are appropriate in the Age Discrimination in

Employment Act 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 7. But the majority does not explain why

this is so. The words “because of” do not inherently re

quire 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” rela

tion when we consider, not physical forces, but the mind

related characterizations that constitute motive. Some

times we speak of determining or discovering motives, but

more often we ascribe motives, after an event, to an indi

vidual in light of the individual’s thoughts and other

circumstances present at the time of decision. In a case

where we characterize an employer’s actions as having

2 GROSS v. FBL FINANCIAL SERVICES, INC.

BREYER, J., dissenting

been taken out of multiple motives, say, both because the

employee was old and because he wore loud clothing, to

apply “but-for” causation is to engage in a hypothetical

inquiry about what would have happened if the employer’s

thoughts and other circumstances had been different. The

answer to this hypothetical inquiry will often be far from

obvious, and, since the employee likely knows less than

does the employer about what the employer was thinking

at the time, the employer will often be in a stronger posi

tion than the employee to provide the answer.

All that a plaintiff can know for certain in such a con

text 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 em

ployee 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 6 (STEVENS, J., dissenting) (describing the Title

VII framework). I can see nothing unfair or impractical

Cite as: 557 U. S. ____ (2009) 3

BREYER, J., dissenting

about allocating the burdens of proof in this way.

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 follow

ing elements have been proved by the preponderance

of the evidence:

. . . . .

“[The] plaintiff’s age was a motivating factor in defen

dant’s decision to demote plaintiff.

“However, your verdict must be for defendant . . . if

it has been proved by the preponderance of the evi

dence 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.