University of Tex. Southwestern Medical Center v. Nassar

(Slip Opinion) OCTOBER TERM, 2012 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

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL

CENTER v. NASSAR

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 12–484. Argued April 24, 2013—Decided June 24, 2013

Petitioner, a university medical center (University) that is part of the

University of Texas system, specializes in medical education. It has

an affiliation agreement with Parkland Memorial Hospital (Hospi-

tal), which requires the Hospital to offer vacant staff physician posts

to University faculty members. Respondent, a physician of Middle

Eastern descent who was both a University faculty member and a

Hospital staff physician, claimed that Dr. Levine, one of his supervi-

sors at the University, was biased against him on account of his reli-

gion and ethnic heritage. He complained to Dr. Fitz, Levine’s super-

visor. But after he arranged to continue working at the Hospital

without also being on the University’s faculty, he resigned his teach-

ing post and sent a letter to Fitz and others, stating that he was leav-

ing because of Levine’s harassment. Fitz, upset at Levine’s public

humiliation and wanting public exoneration for her, objected to the

Hospital’s job offer, which was then withdrawn. Respondent filed

suit, alleging two discrete Title VII violations. First, he alleged that

Levine’s racially and religiously motivated harassment had resulted

in his constructive discharge from the University, in violation of 42

U. S. C. §2000e–2(a), which prohibits an employer from discriminat-

ing against an employee “because of such individual’s race, color, re-

ligion, sex, and national origin” (referred to here as status-based dis-

crimination). Second, he claimed that Fitz’s efforts to prevent the

Hospital from hiring him were in retaliation for complaining about

Levine’s harassment, in violation of §2000e–3(a), which prohibits

employer retaliation “because [an employee] has opposed . . . an un-

lawful employment practice . . . or . . . made a [Title VII] charge.”

The jury found for respondent on both claims. The Fifth Circuit va-

2 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Syllabus

cated as to the constructive-discharge claim, but affirmed as to the

retaliation finding on the theory that retaliation claims brought un-

der §2000e–3(a)—like §2000e–2(a) status-based claims—require only

a showing that retaliation was a motivating factor for the adverse

employment action, not its but-for cause, see §2000e–2(m). And it

found that the evidence supported a finding that Fitz was motivated,

at least in part, to retaliate against respondent for his complaints

about Levine.

Held: Title VII retaliation claims must be proved according to tradi-

tional principles of but-for causation, not the lessened causation test

stated in §2000e–2(m). Pp. 5–23.

(a) In defining the proper causation standard for Title VII retalia-

tion claims, it is presumed that Congress incorporated tort law’s cau-

sation in fact standard—i.e., proof that the defendant’s conduct did in

fact cause the plaintiff’s injury—absent an indication to the contrary

in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285. An em-

ployee alleging status-based discrimination under §2000e–2 need not

show “but-for” causation. It suffices instead to show that the motive

to discriminate was one of the employer’s motives, even if the em-

ployer also had other, lawful motives for the decision. This principle

is the result of Price Waterhouse v. Hopkins, 490 U. S. 228, and the

ensuing Civil Rights Act of 1991 (1991 Act), which substituted a new

burden-shifting framework for the one endorsed by Price Waterhouse.

As relevant here, that Act added a new subsection to §2000e–2,

providing that “an unlawful employment practice is established when

the complaining party demonstrates that race, color, religion, sex, or

national origin was a motivating factor for any employment practice,

even though other factors also motivated the practice,” §2000e–2(m).

Also relevant here is this Court’s decision in Gross v. FBL Finan­

cial Services, Inc., 557 U. S. 167, 176, which interprets the Age Dis-

crimination in Employment Act of 1967 (ADEA) phrase “because of

. . . age,” 29 U. S. C. §623(a)(1). Gross holds two insights that inform

the analysis of this case. The first is textual and concerns the proper

interpretation of the term “because” as it relates to the principles of

causation underlying both §623(a) and §2000e–3(a). The second is

the significance of Congress’ structural choices in both Title VII itself

and the 1991 Act. Pp. 5–11.

(b) Title VII’s antiretaliation provision appears in a different sec-

tion from its status-based discrimination ban. And, like §623(a)(1),

the ADEA provision in Gross, §2000e–3(a) makes it unlawful for an

employer to take adverse employment action against an employee

“because” of certain criteria. Given the lack of any meaningful textu-

al difference between §2000e–3(a) and §623(a)(1), the proper conclu-

sion is that Title VII retaliation claims require proof that the desire

Cite as: 570 U. S. ____ (2013) 3

Syllabus

to retaliate was the but-for cause of the challenged employment ac-

tion. Respondent and the United States maintain that §2000e–2(m)’s

motivating-factor test applies, but that reading is flawed. First, it is

inconsistent with the provision’s plain language, which addresses on-

ly race, color, religion, sex, and national origin discrimination and

says nothing about retaliation. Second, their reading is inconsistent

with the statute’s design and structure. Congress inserted the moti-

vating-factor provision as a subsection within §2000e–2, which deals

only with status-based discrimination. The conclusion that Congress

acted deliberately in omitting retaliation claims from §2000–2(m) is

reinforced by the fact that another part of the 1991 Act, §109, ex-

pressly refers to all unlawful employment actions. See EEOC v. Ara­

bian American Oil Co., 499 U. S. 244, 256. Third, the cases they rely

on, which state the general proposition that Congress’ enactment of a

broadly phrased antidiscrimination statute may signal a concomitant

intent to ban retaliation against individuals who oppose that discrim-

ination, see, e.g., CBOCS West, Inc. v. Humphries, 553 U. S. 442,

452–453; Gómez-Pérez v. Potter, 553 U. S. 474, do not support the

quite different rule that every reference to race, color, creed, sex, or

nationality in an antidiscrimination statute is to be treated as a syn-

onym for “retaliation,” especially in a precise, complex, and exhaus-

tive statute like Title VII. The Americans with Disabilities Act of

1990, which contains seven paragraphs of detailed description of the

practices constituting prohibited discrimination, as well as an ex-

press antiretaliation provision, and which was passed only a year be-

fore §2000e–2(m)’s enactment, shows that when Congress elected to

address retaliation as part of a detailed statutory scheme, it did so

clearly. Pp. 11–17.

(c) The proper interpretation and implementation of §2000e–3(a)

and its causation standard are of central importance to the fair and

responsible allocation of resources in the judicial and litigation sys-

tems, particularly since retaliation claims are being made with ever-

increasing frequency. Lessening the causation standard could also

contribute to the filing of frivolous claims, siphoning resources from

efforts by employers, agencies, and courts to combat workplace har-

assment. Pp. 18–20.

(d) Respondent and the Government argue that their view would

be consistent with longstanding agency views contained in an Equal

Employment Opportunity Commission guidance manual, but the

manual’s explanations for its views lack the persuasive force that is a

necessary precondition to deference under Skidmore v. Swift & Co.,

323 U. S. 134, 140. Respondent’s final argument—that if §2000e–

2(m) does not control, then the Price Waterhouse standard should—is

foreclosed by the 1991 Act’s amendments to Title VII, which dis-

4 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Syllabus

placed the Price Waterhouse framework. Pp. 20–23.

674 F. 3d 448, vacated and remanded.

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

C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a

dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ.,

joined.

Cite as: 570 U. S. ____ (2013) 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. 12–484

_________________

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL

CENTER, PETITIONER v. NAIEL NASSAR

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2013]

JUSTICE KENNEDY delivered the opinion of the Court.

When the law grants persons the right to compensation

for injury from wrongful conduct, there must be some

demonstrated connection, some link, between the injury

sustained and the wrong alleged. The requisite relation

between prohibited conduct and compensable injury is

governed by the principles of causation, a subject most

often arising in elaborating the law of torts. This case

requires the Court to define those rules in the context of

Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e

et seq., which provides remedies to employees for injuries

related to discriminatory conduct and associated wrongs

by employers.

Title VII is central to the federal policy of prohibiting

wrongful discrimination in the Nation’s workplaces and in

all sectors of economic endeavor. This opinion discusses

the causation rules for two categories of wrongful employer

conduct prohibited by Title VII. The first type is called,

for purposes of this opinion, status-based discrimination.

The term is used here to refer to basic workplace protec-

tion such as prohibitions against employer discrimination

2 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

on the basis of race, color, religion, sex, or national origin,

in hiring, firing, salary structure, promotion and the like.

See §2000e–2(a). The second type of conduct is employer

retaliation on account of an employee’s having opposed,

complained of, or sought remedies for, unlawful workplace

discrimination. See §2000e–3(a).

An employee who alleges status-based discrimination

under Title VII need not show that the causal link be-

tween injury and wrong is so close that the injury would

not have occurred but for the act. So-called but-for causa-

tion is not the test. It suffices instead to show that the

motive to discriminate was one of the employer’s motives,

even if the employer also had other, lawful motives that

were causative in the employer’s decision. This principle

is the result of an earlier case from this Court, Price Water­

house v. Hopkins, 490 U. S. 228 (1989), and an ensuing

statutory amendment by Congress that codified in part

and abrogated in part the holding in Price Waterhouse, see

§§2000e–2(m), 2000e–5(g)(2)(B). The question the Court

must answer here is whether that lessened causation

standard is applicable to claims of unlawful employer

retaliation under §2000e–3(a).

Although the Court has not addressed the question of

the causation showing required to establish liability for a

Title VII retaliation claim, it has addressed the issue of

causation in general in a case involving employer discrim-

ination under a separate but related statute, the Age

Discrimination in Employment Act of 1967 (ADEA), 29

U. S. C. §623. See Gross v. FBL Financial Services, Inc.,

557 U. S. 167 (2009). In Gross, the Court concluded that

the ADEA requires proof that the prohibited criterion was

the but-for cause of the prohibited conduct. The holding

and analysis of that decision are instructive here.

I

Petitioner, the University of Texas Southwestern Medi-

Cite as: 570 U. S. ____ (2013) 3

Opinion of the Court

cal Center (University), is an academic institution within

the University of Texas system. The University specializes

in medical education for aspiring physicians, health

professionals, and scientists. Over the years, the Univer-

sity has affiliated itself with a number of healthcare facili-

ties including, as relevant in this case, Parkland Memorial

Hospital (Hospital). As provided in its affiliation agree-

ment with the University, the Hospital permits the Uni-

versity’s students to gain clinical experience working in its

facilities. The agreement also requires the Hospital to

offer empty staff physician posts to the University’s faculty

members, see App. 361–362, 366, and, accordingly, most of

the staff physician positions at the Hospital are filled by

those faculty members.

Respondent is a medical doctor of Middle Eastern de-

scent who specializes in internal medicine and infectious

diseases. In 1995, he was hired to work both as a member

of the University’s faculty and a staff physician at the

Hospital. He left both positions in 1998 for additional

medical education and then returned in 2001 as an assis-

tant professor at the University and, once again, as a

physician at the Hospital.

In 2004, Dr. Beth Levine was hired as the University’s

Chief of Infectious Disease Medicine. In that position

Levine became respondent’s ultimate (though not direct)

superior. Respondent alleged that Levine was biased

against him on account of his religion and ethnic heritage,

a bias manifested by undeserved scrutiny of his billing

practices and productivity, as well as comments that

“ ‘Middle Easterners are lazy.’ ” 674 F. 3d 448, 450 (CA5

2012). On different occasions during his employment,

respondent met with Dr. Gregory Fitz, the University’s

Chair of Internal Medicine and Levine’s supervisor, to

complain about Levine’s alleged harassment. Despite

obtaining a promotion with Levine’s assistance in 2006,

respondent continued to believe that she was biased

4 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

against him. So he tried to arrange to continue working

at the Hospital without also being on the University’s

faculty. After preliminary negotiations with the Hospital

suggested this might be possible, respondent resigned his

teaching post in July 2006 and sent a letter to Dr. Fitz

(among others), in which he stated that the reason for his

departure was harassment by Levine. That harassment,

he asserted, “ ‘stems from . . . religious, racial and cultural

bias against Arabs and Muslims.’ ” Id., at 451. After

reading that letter, Dr. Fitz expressed consternation at

respondent’s accusations, saying that Levine had been

“publicly humiliated by th[e] letter” and that it was “very

important that she be publicly exonerated.” App. 41.

Meanwhile, the Hospital had offered respondent a job as

a staff physician, as it had indicated it would. On learning

of that offer, Dr. Fitz protested to the Hospital, asserting

that the offer was inconsistent with the affiliation agree-

ment’s requirement that all staff physicians also be members

of the University faculty. The Hospital then withdrew

its offer.

After exhausting his administrative remedies, respond-

ent filed this Title VII suit in the United States District

Court for the Northern District of Texas. He alleged two

discrete violations of Title VII. The first was a status-

based discrimination claim under §2000e–2(a). Respondent

alleged that Dr. Levine’s racially and religiously moti-

vated harassment had resulted in his constructive dis-

charge from the University. Respondent’s second claim

was that Dr. Fitz’s efforts to prevent the Hospital from

hiring him were in retaliation for complaining about Dr.

Levine’s harassment, in violation of §2000e–3(a). 674

F. 3d, at 452. The jury found for respondent on both

claims. It awarded him over $400,000 in backpay and

more than $3 million in compensatory damages. The

District Court later reduced the compensatory damages

award to $300,000.

Cite as: 570 U. S. ____ (2013) 5

Opinion of the Court

On appeal, the Court of Appeals for the Fifth Circuit

affirmed in part and vacated in part. The court first con-

cluded that respondent had submitted insufficient evi-

dence in support of his constructive-discharge claim, so it

vacated that portion of the jury’s verdict. The court af-

firmed as to the retaliation finding, however, on the theory

that retaliation claims brought under §2000e–3(a)—like

claims of status-based discrimination under §2000e–2(a)—

require only a showing that retaliation was a motivating

factor for the adverse employment action, rather than its

but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox

Corp., 602 F. 3d 320, 330 (CA5 2010)). It further held that

the evidence supported a finding that Dr. Fitz was moti-

vated, at least in part, to retaliate against respondent for

his complaints against Levine. The Court of Appeals then

remanded for a redetermination of damages in light of its

decision to vacate the constructive-discharge verdict.

Four judges dissented from the court’s decision not to

rehear the case en banc, arguing that the Circuit’s appli-

cation of the motivating-factor standard to retaliation

cases was “an erroneous interpretation of [Title VII] and

controlling caselaw” and should be overruled en banc. 688

F. 3d 211, 213–214 (CA5 2012) (Smith, J., dissenting from

denial of rehearing en banc).

Certiorari was granted. 568 U. S. ___ (2013).

II

A

This case requires the Court to define the proper stand-

ard of causation for Title VII retaliation claims. Causation

in fact—i.e., proof that the defendant’s conduct did in fact

cause the plaintiff ’s injury—is a standard requirement of

any tort claim, see Restatement of Torts §9 (1934) (defini-

tion of “legal cause”); §431, Comment a (same); §279, and

Comment c (intentional infliction of physical harm); §280

(other intentional torts); §281(c) (negligence). This in-

6 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

cludes federal statutory claims of workplace discrimina-

tion. Hazen Paper Co. v. Biggins, 507 U. S. 604, 610

(1993) (In intentional-discrimination cases, “liability

depends on whether the protected trait” “actually motivated

the employer’s decision” and “had a determinative in-

fluence on the outcome”); Los Angeles Dept. of Water and

Power v. Manhart, 435 U. S. 702, 711 (1978) (explaining

that the “simple test” for determining a discriminatory

employment practice is “whether the evidence shows

treatment of a person in a manner which but for that

person’s sex would be different” (internal quotation marks

omitted)).

In the usual course, this standard requires the plaintiff

to show “that the harm would not have occurred” in the

absence of—that is, but for—the defendant’s conduct.

Restatement of Torts §431, Comment a (negligence);

§432(1), and Comment a (same); see §279, and Comment c

(intentional infliction of bodily harm); §280 (other inten-

tional torts); Restatement (Third) of Torts: Liability for

Physical and Emotional Harm §27, and Comment b (2010)

(noting the existence of an exception for cases where an

injured party can prove the existence of multiple, inde-

pendently sufficient factual causes, but observing that

“cases invoking the concept are rare”). See also Restate-

ment (Second) of Torts §432(1) (1963 and 1964) (negli-

gence claims); §870, Comment l (intentional injury to

another); cf. §435a, and Comment a (legal cause for inten-

tional harm). It is thus textbook tort law that an action “is

not regarded as a cause of an event if the particular event

would have occurred without it.” W. Keeton, D. Dobbs, R.

Keeton, & D. Owen, Prosser and Keeton on Law of Torts

265 (5th ed. 1984). This, then, is the background against

which Congress legislated in enacting Title VII, and these

are the default rules it is presumed to have incorporated,

absent an indication to the contrary in the statute itself.

See Meyer v. Holley, 537 U. S. 280, 285 (2003); Carey v.

Cite as: 570 U. S. ____ (2013) 7

Opinion of the Court

Piphus, 435 U. S. 247, 257–258 (1978).

B

Since the statute’s passage in 1964, it has prohibited

employers from discriminating against their employees on

any of seven specified criteria. Five of them—race, color,

religion, sex, and national origin—are personal character-

istics and are set forth in §2000e–2. (As noted at the

outset, discrimination based on these five characteristics

is called status-based discrimination in this opinion.) And

then there is a point of great import for this case: The two

remaining categories of wrongful employer conduct—the

employee’s opposition to employment discrimination, and

the employee’s submission of or support for a complaint

that alleges employment discrimination—are not wrongs

based on personal traits but rather types of protected

employee conduct. These latter two categories are covered

by a separate, subsequent section of Title VII, §2000e–

3(a).

Under the status-based discrimination provision, it is an

“unlawful employment practice” for an employer “to dis-

criminate against any individual . . . because of such

individual’s race, color, religion, sex, or national origin.”

§2000e–2(a). In its 1989 decision in Price Waterhouse, the

Court sought to explain the causation standard imposed

by this language. It addressed in particular what it means

for an action to be taken “because of ” an individual’s race,

religion, or nationality. Although no opinion in that case

commanded a majority, six Justices did agree that a plain-

tiff could prevail on a claim of status-based discrimination

if he or she could show that one of the prohibited traits

was a “motivating” or “substantial” factor in the employ-

er’s decision. 490 U. S., at 258 (plurality opinion); id., at

259 (White, J., concurring in judgment); id., at 276

(O’Connor, J., concurring in judgment). If the plaintiff

made that showing, the burden of persuasion would shift

8 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

to the employer, which could escape liability if it could

prove that it would have taken the same employment

action in the absence of all discriminatory animus. Id., at

258 (plurality opinion); id., at 259–260 (opinion of White,

J.); id., at 276–277 (opinion of O’Connor, J.). In other

words, the employer had to show that a discriminatory

motive was not the but-for cause of the adverse employ-

ment action.

Two years later, Congress passed the Civil Rights Act of

1991 (1991 Act), 105 Stat. 1071. This statute (which had

many other provisions) codified the burden-shifting and

lessened-causation framework of Price Waterhouse in part

but also rejected it to a substantial degree. The legislation

first added a new subsection to the end of §2000e–2, i.e.,

Title VII’s principal ban on status-based discrimination.

See §107(a), 105 Stat. 1075. The new provision, §2000e–

2(m), states:

“[A]n unlawful employment practice is established

when the complaining party demonstrates that race,

color, religion, sex, or national origin was a motivating

factor for any employment practice, even though other

factors also motivated the practice.”

This, of course, is a lessened causation standard.

The 1991 Act also abrogated a portion of Price Water­

house’s framework by removing the employer’s ability to

defeat liability once a plaintiff proved the existence of an

impermissible motivating factor. See Gross, 557 U. S., at

178, n. 5. In its place, Congress enacted §2000e–5(g)(2),

which provides:

“(B) On a claim in which an individual proves a vio-

lation under section 2000e–2(m) of this title and [the

employer] demonstrates that [it] would have taken

the same action in the absence of the impermissible

motivating factor, the court—

“(i) may grant declaratory relief, injunctive relief . . .

Cite as: 570 U. S. ____ (2013) 9

Opinion of the Court

and [limited] attorney’s fees and costs . . . ; and

“(ii) shall not award damages or issue an order

requiring any admission, reinstatement, hiring, promo-

tion, or payment . . . .”

So, in short, the 1991 Act substituted a new burden-

shifting framework for the one endorsed by Price Water­

house. Under that new regime, a plaintiff could obtain

declaratory relief, attorney’s fees and costs, and some

forms of injunctive relief based solely on proof that race,

color, religion, sex, or nationality was a motivating factor

in the employment action; but the employer’s proof that it

would still have taken the same employment action would

save it from monetary damages and a reinstatement

order. See Gross, 557 U. S., at 178, n. 5; see also id., at

175, n. 2, 177, n. 3.

After Price Waterhouse and the 1991 Act, considerable

time elapsed before the Court returned again to the mean-

ing of “because” and the problem of causation. This time it

arose in the context of a different, yet similar statute, the

ADEA, 29 U. S. C. §623(a). See Gross, supra. Much like

the Title VII statute in Price Waterhouse, the relevant

portion of the ADEA provided 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 respect to his compensation, terms, condi-

tions, or privileges of employment, because of such indi-

vidual’s age.’ ” 557 U. S., at 176 (quoting §623(a)(1);

emphasis and ellipsis in original).

Concentrating first and foremost on the meaning of the

phrase “ ‘because of . . . age,’ ” the Court in Gross explained

that the ordinary meaning of “ ‘because of ’ ” is “ ‘by reason

of ’ ” or “ ‘on account of.’ ” Id., at 176 (citing 1 Webster’s

Third New International Dictionary 194 (1966); 1 Oxford

English Dictionary 746 (1933); The Random House Dic-

tionary of the English Language 132 (1966); emphasis in

10 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

original). Thus, the “requirement that an employer took

adverse action ‘because of ’ age [meant] that age was the

‘reason’ that the employer decided to act,” or, in other

words, that “age was the ‘but-for’ cause of the employer’s

adverse decision.” 557 U. S., at 176. See also Safeco Ins.

Co. of America v. Burr, 551 U. S. 47, 63–64, and n. 14

(2007) (noting that “because of ” means “based on” and

that “ ‘based on’ indicates a but-for causal relationship”);

Holmes v. Securities Investor Protection Corporation, 503

U. S. 258, 265–266 (1992) (equating “by reason of ” with

“ ‘but for’ cause”).

In the course of approving this construction, Gross

declined to adopt the interpretation endorsed by the plu-

rality and concurring opinions in Price Waterhouse. Not-

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

wrote it,’ ” 557 U. S., at 179 (quoting Meacham v. Knolls

Atomic Power Laboratory, 554 U. S. 84, 102 (2008)), the

Court concluded that “the textual differences between

Title VII and the ADEA” “prevent[ed] us from applying

Price Waterhouse . . . to federal age discrimination claims,”

557 U. S., at 175, n. 2. In particular, the Court stressed

the congressional choice not to add a provision like

§2000e–2(m) to the ADEA despite making numerous other

changes to the latter statute in the 1991 Act. Id., at 174–

175 (citing EEOC v. Arabian American Oil Co., 499 U. S.

244, 256 (1991)); 557 U. S., at 177, n. 3 (citing 14 Penn

Plaza LLC v. Pyett, 556 U. S. 247, 270 (2009)).

Finally, the Court in Gross held that it would not be

proper to read Price Waterhouse as announcing a rule that

applied to both statutes, despite their similar wording and

near-contemporaneous enactment. 557 U. S., at 178, n. 5.

This different reading was necessary, the Court concluded,

because Congress’ 1991 amendments to Title VII, includ-

ing its “careful tailoring of the ‘motivating factor’ claim”

and the substitution of §2000e–5(g)(2)(B) for Price Water­

house’s full affirmative defense, indicated that the moti-

Cite as: 570 U. S. ____ (2013) 11

Opinion of the Court

vating-factor standard was not an organic part of Title VII

and thus could not be read into the ADEA. See 557 U. S.,

at 178, n. 5.

In Gross, the Court was careful to restrict its analysis to

the statute before it and withhold judgment on the proper

resolution of a case, such as this, which arose under Title

VII rather than the ADEA. But the particular confines of

Gross do not deprive it of all persuasive force. Indeed,

that opinion holds two insights for the present case. The

first is textual and concerns the proper interpretation of

the term “because” as it relates to the principles of causa-

tion underlying both §623(a) and §2000e–3(a). The second

is the significance of Congress’ structural choices in both

Title VII itself and the law’s 1991 amendments. These

principles do not decide the present case but do inform its

analysis, for the issues possess significant parallels.

III

A

As noted, Title VII’s antiretaliation provision, which is

set forth in §2000e–3(a), appears in a different section

from Title VII’s ban on status-based discrimination. The

antiretaliation provision states, in relevant part:

“It shall be an unlawful employment practice for an

employer to discriminate against any of his employees

. . . because he has opposed any practice made an

unlawful employment practice by this subchapter, or

because he has made a charge, testified, assisted, or

participated in any manner in an investigation,

proceeding, or hearing under this subchapter.”

This enactment, like the statute at issue in Gross,

makes it unlawful for an employer to take adverse em-

ployment action against an employee “because” of certain

criteria. Cf. 29 U. S. C. §623(a)(1). Given the lack of any

meaningful textual difference between the text in this

12 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

statute and the one in Gross, the proper conclusion here,

as in Gross, is that Title VII retaliation claims require

proof that the desire to retaliate was the but-for cause of

the challenged employment action. See Gross, supra, at

176.

The principal counterargument offered by respondent

and the United States relies on their different understand-

ing of the motivating-factor section, which—on its face—

applies only to status discrimination, discrimination on

the basis of race, color, religion, sex, and national origin.

In substance, they contend that: (1) retaliation is defined

by the statute to be an unlawful employment practice; (2)

§2000e–2(m) allows unlawful employment practices to be

proved based on a showing that race, color, religion, sex, or

national origin was a motivating factor for—and not nec-

essarily the but-for factor in—the challenged employment

action; and (3) the Court has, as a matter of course, held

that “retaliation for complaining about race discrimination

is ‘discrimination based on race.’ ” Brief for United States

as Amicus Curiae 14; see id., at 11–14; Brief for Respond-

ent 16–19.

There are three main flaws in this reading of §2000e–

2(m). The first is that it is inconsistent with the provi-

sion’s plain language. It must be acknowledged that

because Title VII defines “unlawful employment practice”

to include retaliation, the question presented by this case

would be different if §2000e–2(m) extended its coverage to

all unlawful employment practices. As actually written,

however, the text of the motivating-factor provision, while

it begins by referring to “unlawful employment practices,”

then proceeds to address only five of the seven prohibited

discriminatory actions—actions based on the employee’s

status, i.e., race, color, religion, sex, and national origin.

This indicates Congress’ intent to confine that provision’s

coverage to only those types of employment practices. The

text of §2000e–2(m) says nothing about retaliation claims.

Cite as: 570 U. S. ____ (2013) 13

Opinion of the Court

Given this clear language, it would be improper to con-

clude that what Congress omitted from the statute is

nevertheless within its scope. Gardner v. Collins, 2 Pet.

58, 93 (1829) (“What the legislative intention was, can be

derived only from the words they have used; and we can-

not speculate beyond the reasonable import of these

words”); see Sebelius v. Cloer, 569 U. S. ___, ___ (2013)

(slip op., at 8).

The second problem with this reading is its inconsistency

with the design and structure of the statute as a whole.

See Gross, 557 U. S., at 175, n. 2, 178, n. 5. Just as Con-

gress’ choice of words is presumed to be deliberate, so too

are its structural choices. See id., at 177, n. 3. When

Congress wrote the motivating-factor provision in 1991, it

chose to insert it as a subsection within §2000e–2, which

contains Title VII’s ban on status-based discrimination,

§§2000e–2(a) to (d), (l), and says nothing about retaliation.

See 1991 Act, §107(a), 105 Stat. 1075 (directing that

“§2000e–2 . . . [be] further amended by adding at the end

the following new subsection . . . (m)”). The title of the

section of the 1991 Act that created §2000e–2(m)—

“Clarifying prohibition against impermissible considera-

tion of race, color, religion, sex, or national origin in

employment practices”—also indicates that Congress

determined to address only claims of status-based

discrimination, not retaliation. See §107(a), id., at 1075.

What is more, a different portion of the 1991 Act con-

tains an express reference to all unlawful employment

actions, thereby reinforcing the conclusion that Congress

acted deliberately when it omitted retaliation claims from

§2000e–2(m). See Arabian American Oil Co., 499 U. S., at

256 (congressional amendment of ADEA on a similar

subject coupled with congressional failure to amend Title

VII weighs against conclusion that the ADEA’s standard

applies to Title VII); see also Gross, supra, at 177, n. 3.

The relevant portion of the 1991 Act, §109(b), allowed

14 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

certain overseas operations by U. S. employers to engage

in “any practice prohibited by section 703 or 704,” i.e.,

§2000e–2 or §2000e–3, “if compliance with such section

would cause such employer . . . to violate the law of the

foreign country in which such workplace is located.” 105

Stat. 1077.

If Congress had desired to make the motivating-factor

standard applicable to all Title VII claims, it could have

used language similar to that which it invoked in §109.

See Arabian American Oil Co., supra, at 256. Or, it could

have inserted the motivating-factor provision as part of a

section that applies to all such claims, such as §2000e–5,

which establishes the rules and remedies for all Title VII

enforcement actions. See FDA v. Brown & Williamson

Tobacco Corp., 529 U. S. 120, 160 (2000). But in writing

§2000e–2(m), Congress did neither of those things, and

“[w]e must give effect to Congress’ choice.” Gross, supra,

at 177, n. 3.

The third problem with respondent’s and the Govern-

ment’s reading of the motivating-factor standard is in its

submission that this Court’s decisions interpreting federal

antidiscrimination law have, as a general matter, treated

bans on status-based discrimination as also prohibiting

retaliation. In support of this proposition, both respond-

ent and the United States rely upon decisions in which

this Court has “read [a] broadly worded civil rights statute

. . . as including an antiretaliation remedy.” CBOCS West,

Inc. v. Humphries, 553 U. S. 442, 452–453 (2008). In

CBOCS, for example, the Court held that 42 U. S. C.

§1981—which declares that all persons “shall have the

same right . . . to make and enforce contracts . . . as is

enjoyed by white citizens”—prohibits not only racial dis-

crimination but also retaliation against those who oppose

it. 553 U. S., at 445. And in Gómez-Pérez v. Potter, 553

U. S. 474 (2008), the Court likewise read a bar on retalia-

tion into the broad wording of the federal-employee provi-

Cite as: 570 U. S. ____ (2013) 15

Opinion of the Court

sions of the ADEA. Id., at 479, 487 (“All personnel actions

affecting [federal] employees . . . who are at least 40 years

of age . . . shall be made free from any discrimination

based on age,” 29 U. S. C. §633a(a)); see also Jackson v.

Birmingham Bd. of Ed., 544 U. S. 167, 173, 179 (2005) (20

U. S. C. §1681(a) (Title IX)); Sullivan v. Little Hunting

Park, Inc., 396 U. S. 229, 235, n. 3, 237 (1969) (42 U. S. C.

§1982).

These decisions are not controlling here. It is true these

cases do state the general proposition that Congress’

enactment of a broadly phrased antidiscrimination statute

may signal a concomitant intent to ban retaliation against

individuals who oppose that discrimination, even where

the statute does not refer to retaliation in so many words.

What those cases do not support, however, is the quite

different rule that every reference to race, color, creed, sex,

or nationality in an antidiscrimination statute is to be

treated as a synonym for “retaliation.” For one thing,

§2000e–2(m) is not itself a substantive bar on discrimina-

tion. Rather, it is a rule that establishes the causation

standard for proving a violation defined elsewhere in Title

VII. The cases cited by respondent and the Government

do not address rules of this sort, and those precedents are

of limited relevance here.

The approach respondent and the Government suggest

is inappropriate in the context of a statute as precise,

complex, and exhaustive as Title VII. As noted, the laws

at issue in CBOCS, Jackson, and Gómez-Pérez were broad,

general bars on discrimination. In interpreting them the

Court concluded that by using capacious language Con-

gress expressed the intent to bar retaliation in addition to

status-based discrimination. See Gómez-Pérez, supra, at

486–488. In other words, when Congress’ treatment of the

subject of prohibited discrimination was both broad and

brief, its omission of any specific discussion of retaliation

was unremarkable.

16 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

If Title VII had likewise been phrased in broad and

general terms, respondent’s argument might have more

force. But that is not how Title VII was written, which

makes it incorrect to infer that Congress meant anything

other than what the text does say on the subject of retalia-

tion. Unlike Title IX, §1981, §1982, and the federal-sector

provisions of the ADEA, Title VII is a detailed statutory

scheme. This statute enumerates specific unlawful em-

ployment practices. See §§2000e–2(a)(1), (b), (c)(1), (d)

(status-based discrimination by employers, employment

agencies, labor organizations, and training programs,

respectively); §2000e–2(l) (status-based discrimination in

employment-related testing); §2000e–3(a) (retaliation for

opposing, or making or supporting a complaint about,

unlawful employment actions); §2000e–3(b) (advertising a

preference for applicants of a particular race, color, reli-

gion, sex, or national origin). It defines key terms, see

§2000e, and exempts certain types of employers, see

§2000e–1. And it creates an administrative agency with

both rulemaking and enforcement authority. See

§§2000e–5, 2000e–12.

This fundamental difference in statutory structure

renders inapposite decisions which treated retaliation as

an implicit corollary of status-based discrimination. Text

may not be divorced from context. In light of Congress’

special care in drawing so precise a statutory scheme, it

would be improper to indulge respondent’s suggestion that

Congress meant to incorporate the default rules that apply

only when Congress writes a broad and undifferentiated

statute. See Gómez-Pérez, supra, at 486–488 (when con-

struing the broadly worded federal-sector provision of the

ADEA, Court refused to draw inferences from Congress’

amendments to the detailed private-sector provisions);

Arabian American Oil Co., 499 U. S., at 256; cf. Jackson,

supra, at 175 (distinguishing Title IX’s “broadly written

general prohibition on discrimination” from Title VII’s

Cite as: 570 U. S. ____ (2013) 17

Opinion of the Court

“greater detail [with respect to] the conduct that consti-

tutes discrimination”).

Further confirmation of the inapplicability of §2000e–

2(m) to retaliation claims may be found in Congress’

approach to the Americans with Disabilities Act of 1990

(ADA), 104 Stat. 327. In the ADA Congress provided not

just a general prohibition on discrimination “because of

[an individual’s] disability,” but also seven paragraphs of

detailed description of the practices that would constitute

the prohibited discrimination, see §§102(a), (b)(1)–(7), id.,

at 331–332 (codified at 42 U. S. C. §12112). And, most

pertinent for present purposes, it included an express

antiretaliation provision, see §503(a), 104 Stat. 370 (codi-

fied at 42 U. S. C. §12203). That law, which Congress

passed only a year before enacting §2000e–2(m) and which

speaks in clear and direct terms to the question of retalia-

tion, rebuts the claim that Congress must have intended

to use the phrase “race, color, religion, sex, or national

origin” as the textual equivalent of “retaliation.” To the

contrary, the ADA shows that when Congress elected to

address retaliation as part of a detailed statutory scheme,

it did so in clear textual terms.

The Court confronted a similar structural dispute in

Lehman v. Nakshian, 453 U. S. 156 (1981). The question

there was whether the federal-employment provisions of

the ADEA, 29 U. S. C. §633a, provided a jury-trial right

for claims against the Federal Government. Nakshian,

453 U. S., at 157. In concluding that it did not, the Court

noted that the portion of the ADEA that prohibited age

discrimination by private, state, and local employers,

§626, expressly provided for a jury trial, whereas the

federal-sector provisions said nothing about such a right.

Id., at 162–163, 168. So, too, here. Congress has in explic-

it terms altered the standard of causation for one class of

claims but not another, despite the obvious opportunity to

do so in the 1991 Act.

18 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

B

The proper interpretation and implementation of

§2000e–3(a) and its causation standard have central im-

portance to the fair and responsible allocation of resources

in the judicial and litigation systems. This is of particular

significance because claims of retaliation are being made

with ever-increasing frequency. The number of these

claims filed with the Equal Employment Opportunity

Commission (EEOC) has nearly doubled in the past 15

years—from just over 16,000 in 1997 to over 31,000

in 2012. EEOC, Charge Statistics FY 1997 Through

FY 2012, http://www.eeoc.gov/eeoc/statistics/enforcement/

charges.cfm (as visited June 20, 2013, and available in

Clerk of Court’s case file). Indeed, the number of retalia-

tion claims filed with the EEOC has now outstripped those

for every type of status-based discrimination except race.

See ibid.

In addition lessening the causation standard could also

contribute to the filing of frivolous claims, which would

siphon resources from efforts by employer, administrative

agencies, and courts to combat workplace harassment.

Consider in this regard the case of an employee who

knows that he or she is about to be fired for poor perform-

ance, given a lower pay grade, or even just transferred to

a different assignment or location. To forestall that lawful

action, he or she might be tempted to make an unfounded

charge of racial, sexual, or religious discrimination; then,

when the unrelated employment action comes, the em-

ployee could allege that it is retaliation. If respondent

were to prevail in his argument here, that claim could be

established by a lessened causation standard, all in order

to prevent the undesired change in employment circum-

stances. Even if the employer could escape judgment after

trial, the lessened causation standard would make it far

more difficult to dismiss dubious claims at the summary

judgment stage. Cf. Vance v. Ball State Univ., post, at 9–

Cite as: 570 U. S. ____ (2013) 19

Opinion of the Court

11. It would be inconsistent with the structure and opera-

tion of Title VII to so raise the costs, both financial and

reputational, on an employer whose actions were not in

fact the result of any discriminatory or retaliatory intent.

See Brief for National School Boards Association as Ami­

cus Curiae 11–22. Yet there would be a significant risk of

that consequence if respondent’s position were adopted

here.

The facts of this case also demonstrate the legal and

factual distinctions between status-based and retaliation

claims, as well as the importance of the correct standard of

proof. Respondent raised both claims in the District

Court. The alleged wrongdoer differed in each: In re-

spondent’s status-based discrimination claim, it was his

indirect supervisor, Dr. Levine. In his retaliation claim, it

was the Chair of Internal Medicine, Dr. Fitz. The proof

required for each claim differed, too. For the status-based

claim, respondent was required to show instances of racial

slurs, disparate treatment, and other indications of

nationality-driven animus by Dr. Levine. Respondent’s

retaliation claim, by contrast, relied on the theory that Dr.

Fitz was committed to exonerating Dr. Levine and wished

to punish respondent for besmirching her reputation.

Separately instructed on each type of claim, the jury re-

turned a separate verdict for each, albeit with a single

damages award. And the Court of Appeals treated each

claim separately, too, finding insufficient evidence on the

claim of status-based discrimination.

If it were proper to apply the motivating-factor standard

to respondent’s retaliation claim, the University might

well be subject to liability on account of Dr. Fitz’s alleged

desire to exonerate Dr. Levine, even if it could also be

shown that the terms of the affiliation agreement pre-

cluded the Hospital’s hiring of respondent and that the

University would have sought to prevent respondent’s

hiring in order to honor that agreement in any event. That

20 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

result would be inconsistent with the both the text and

purpose of Title VII.

In sum, Title VII defines the term “unlawful employ-

ment practice” as discrimination on the basis of any of

seven prohibited criteria: race, color, religion, sex, national

origin, opposition to employment discrimination, and

submitting or supporting a complaint about employment

discrimination. The text of §2000e–2(m) mentions just the

first five of these factors, the status-based ones; and it

omits the final two, which deal with retaliation. When it

added §2000e–2(m) to Title VII in 1991, Congress inserted

it within the section of the statute that deals only with

those same five criteria, not the section that deals with

retaliation claims or one of the sections that apply to all

claims of unlawful employment practices. And while the

Court has inferred a congressional intent to prohibit retal-

iation when confronted with broadly worded antidiscrimi-

nation statutes, Title VII’s detailed structure makes that

inference inappropriate here. Based on these textual and

structural indications, the Court now concludes as follows:

Title VII retaliation claims must be proved according to

traditional principles of but-for causation, not the lessened

causation test stated in §2000e–2(m). This requires proof

that the unlawful retaliation would not have occurred in

the absence of the alleged wrongful action or actions of the

employer.

IV

Respondent and the Government also argue that apply-

ing the motivating-factor provision’s lessened causation

standard to retaliation claims would be consistent with

longstanding agency views, contained in a guidance man-

ual published by the EEOC. It urges that those views are

entitled to deference under this Court’s decision in Skid­

more v. Swift & Co., 323 U. S. 134 (1944). See National

Railroad Passenger Corporation v. Morgan, 536 U. S. 101,

Cite as: 570 U. S. ____ (2013) 21

Opinion of the Court

110, n. 6 (2002). The weight of deference afforded to

agency interpretations under Skidmore depends upon “the

thoroughness evident in its consideration, the validity of

its reasoning, its consistency with earlier and later pro-

nouncements, and all those factors which give it power to

persuade.” 323 U. S., at 140; see Vance, post, at 9, n. 4.

According to the manual in question, the causation

element of a retaliation claim is satisfied if “there is credi-

ble direct evidence that retaliation was a motive for the

challenged action,” regardless of whether there is also

“[e]vidence as to [a] legitimate motive.” 2 EEOC Compli-

ance Manual §8–II(E)(1), pp. 614:0007–614:0008 (Mar.

2003). After noting a division of authority as to whether

motivating-factor or but-for causation should apply to

retaliation claims, the manual offers two rationales in

support of adopting the former standard. The first is that

“[c]ourts have long held that the evidentiary framework

for proving [status-based] discrimination . . . also applies

to claims of discrimination based on retaliation.” Id., at

614:0008, n. 45. Second, the manual states that “an inter-

pretation . . . that permits proven retaliation to go unpun-

ished undermines the purpose of the anti-retaliation

provisions of maintaining unfettered access to the statutory

remedial mechanism.” Ibid.

These explanations lack the persuasive force that is a

necessary precondition to deference under Skidmore. See

323 U. S., at 140; Vance, post, at 9, n. 4. As to the first

rationale, while the settled judicial construction of a par-

ticular statute is of course relevant in ascertaining statu-

tory meaning, see Lorillard v. Pons, 434 U. S. 575, 580–

581 (1978), the manual’s discussion fails to address the

particular interplay among the status-based discrimina-

tion provision (§2000e–2(a)), the antiretaliation provision

(§2000e–3(a)), and the motivating-factor provision

(§2000e–2(m)). Other federal antidiscrimination statutes

do not have the structure of statutory subsections that

22 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

Opinion of the Court

control the outcome at issue here. The manual’s failure to

address the specific provisions of this statutory scheme,

coupled with the generic nature of its discussion of the

causation standards for status-based discrimination and

retaliation claims, call the manual’s conclusions into

serious question. See Kentucky Retirement Systems v.

EEOC, 554 U. S. 135, 149–150 (2008).

The manual’s second argument is unpersuasive, too; for

its reasoning is circular. It asserts the lessened causation

standard is necessary in order to prevent “proven retalia-

tion” from “go[ing] unpunished.” 2 EEOC Compliance

Manual §8–II(E)(1), at 614:0008, n. 45. Yet this assumes

the answer to the central question at issue here, which is

what causal relationship must be shown in order to prove

retaliation.

Respondent’s final argument, in which he is not joined

by the United States, is that even if §2000e–2(m) does not

control the outcome in this case, the standard applied by

Price Waterhouse should control instead. That assertion is

incorrect. First, this position is foreclosed by the 1991

Act’s amendments to Title VII. As noted above, Price

Waterhouse adopted a complex burden-shifting frame-

work. Congress displaced this framework by enacting

§2000e–2(m) (which adopts the motivating-factor standard

for status-based discrimination claims) and §2000e–

5(g)(2)(B) (which replaces employers’ total defense with a

remedial limitation). See Gross, 557 U. S., at 175, n. 2,

177, n. 3, 178, n. 5. Given the careful balance of lessened

causation and reduced remedies Congress struck in the

1991 Act, there is no reason to think that the different

balance articulated by Price Waterhouse somehow sur-

vived that legislation’s passage. Second, even if this ar-

gument were still available, it would be inconsistent with

the Gross Court’s reading (and the plain textual meaning)

of the word “because” as it appears in both §623(a) and

§2000e–3(a). See Gross, supra, at 176–177. For these

Cite as: 570 U. S. ____ (2013) 23

Opinion of the Court

reasons, the rule of Price Waterhouse is not controlling

here.

V

The text, structure, and history of Title VII demonstrate

that a plaintiff making a retaliation claim under §2000e–

3(a) must establish that his or her protected activity was

a but-for cause of the alleged adverse action by the em-

ployer. The University claims that a fair application of this

standard, which is more demanding than the motivating-

factor standard adopted by the Court of Appeals, entitles

it to judgment as a matter of law. It asks the Court to so

hold. That question, however, is better suited to resolu-

tion by courts closer to the facts of this case. The judg-

ment of the Court of Appeals for the Fifth Circuit is vacated,

and the case is remanded for further proceedings

consistent with this opinion.

It is so ordered.

Cite as: 570 U. S. ____ (2013) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–484

_________________

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL

CENTER, PETITIONER v. NAIEL NASSAR

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2013]

JUSTICE GINSBURG, with whom JUSTICE BREYER, JUS-

TICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.

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

§2000e et seq., makes it an “unlawful employment prac­

tice” to “discriminate against any individual . . . because of

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

origin.” §2000e–2(a) (emphasis added). Backing up that

core provision, Title VII also makes it an “unlawful em­

ployment practice” to discriminate against any individual

“because” the individual has complained of, opposed, or

participated in a proceeding about, prohibited discrimina­

tion. §2000e–3(a) (emphasis added). This form of discrim­

ination is commonly called “retaliation,” although Title VII

itself does not use that term. The Court has recognized

that effective protection against retaliation, the office of

§2000e–3(a), is essential to securing “a workplace where

individuals are not discriminated against because of their

racial, ethnic, religious, or gender-based status.” Burling­

ton N. & S. F. R. Co. v. White, 548 U. S. 53, 63 (2006)

(Burlington Northern). That is so because “fear of retalia­

tion is the leading reason why people stay silent” about

the discrimination they have encountered or observed.

Crawford v. Metropolitan Government of Nashville and

Davidson Cty., 555 U. S. 271, 279 (2009) (internal quota­

tion marks and brackets omitted).

2 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

GINSBURG, J., dissenting

Similarly worded, the ban on discrimination and the ban

on retaliation against a discrimination complainant have

traveled together: Title VII plaintiffs often raise the two pro­

visions in tandem. Today’s decision, however, drives a

wedge between the twin safeguards in so-called “mixed­

motive” cases. To establish discrimination, all agree, the

complaining party need show only that race, color, reli­

gion, sex, or national origin was “a motivating factor” in

an employer’s adverse action; an employer’s proof that

“other factors also motivated the [action]” will not defeat

the discrimination claim. §2000e–2(m). But a retaliation

claim, the Court insists, must meet a stricter standard:

The claim will fail unless the complainant shows “but-for”

causation, i.e., that the employer would not have taken the

adverse employment action but for a design to retaliate.

In so reining in retaliation claims, the Court misappre­

hends what our decisions teach: Retaliation for complain­

ing about discrimination is tightly bonded to the core pro­

hibition and cannot be disassociated from it. Indeed,

this Court has explained again and again that “retaliation

in response to a complaint about [proscribed] discrimina­

tion is discrimination” on the basis of the characteristic

Congress sought to immunize against adverse employment

action. Jackson v. Birmingham Bd. of Ed., 544 U. S. 167,

179, n. 3 (2005) (emphasis added; internal quotation

marks omitted).

The Court shows little regard for the trial judges who

will be obliged to charge discrete causation standards

when a claim of discrimination “because of,” e.g., race is

coupled with a claim of discrimination “because” the indi­

vidual has complained of race discrimination. And jurors

will puzzle over the rhyme or reason for the dual stand­

ards. Of graver concern, the Court has seized on a provi­

sion, §2000e–2(m), adopted by Congress as part of an

endeavor to strengthen Title VII, and turned it into a

measure reducing the force of the ban on retaliation.

Cite as: 570 U. S. ____ (2013) 3

GINSBURG, J., dissenting

I

Dr. Naiel Nassar is of Middle Eastern descent. A spe­

cialist in the treatment of HIV/AIDS, Nassar was a faculty

member of the University of Texas Southwestern Medical

Center (UTSW) from 1995 until 2006, save for a period

during which he left his employment to continue his edu­

cation. UTSW is affiliated with Parkland Hospital and,

like other faculty members at the University, Nassar also

worked as a physician at the Hospital. Beginning in 2001,

Nassar served as Associate Medical Director of the Hospi­

tal’s Amelia Court Clinic.

Until 2004, Dr. Phillip Keiser, Medical Director of the

Clinic, was Nassar’s principal supervisor. In that year,

UTSW hired Dr. Beth Levine to oversee the Clinic and to

supervise Keiser. Before Levine commenced her employ­

ment at UTSW, she interviewed her potential subordi­

nates. Meeting with other Clinic doctors for only 15 to 20

minutes, Levine spent an hour and a half with Nassar,

engaging in a detailed review of his resume and reading

from a list of prepared questions. Record 2926–2928.

Once Levine came on board, she expressed concern

to Keiser about Nassar’s productivity and questioned his

work ethic. Id., at 2361–2362. According to Keiser, Le-

vine “never seemed to [be] satisf[ied]” with his assurances

that Nassar was in fact working harder than other physi­

cians. Id., at 2362. Disconcerted by Levine’s scrutiny,

Nassar several times complained about it to Levine’s

supervisor, Dr. Gregory Fitz, Chair of Internal Medicine.

App. to Pet. for Cert. 4.

In 2005, Levine opposed hiring another physician who,

like Nassar, was of Middle Eastern descent. In Keiser’s

presence, Levine remarked that “Middle Easterners are

lazy.” Id., at 3. When that physician was hired by Park­

land, Levine said, again in Keiser’s presence, that the

Hospital had “hired another one.” Ibid. See also Record

2399–2400. Keiser presented to Levine objective data

4 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

GINSBURG, J., dissenting

demonstrating Nassar’s high productivity. Levine then

began criticizing Nassar’s billing practices. Her criticism

did not take into account that Nassar’s salary was funded

by a federal grant that precluded billing for most of his

services. App. to Pet. for Cert. 3.

Because of Levine’s hostility, Nassar sought a way to

continue working at the Clinic without falling under her

supervision. To that end, Nassar engaged in discussions

with the Hospital about dropping his affiliation with

UTSW and retaining his post at Parkland. Although he

was initially told that an affiliation agreement between

UTSW and Parkland obliged Parkland to fill its staff

physician posts with UTSW faculty, talks with the Hos­

pital continued. Eventually, Parkland verbally offered

Nassar a position as a staff physician. See App. 67–71,

214–216, 326–330.

In July 2006, Nassar resigned from his position at

UTSW. “The primary reason [for his] resignation,” Nassar

wrote in a letter to Fitz, “[was] the continuing harassment

and discrimination . . . by . . . Dr. Beth Levine.” App. to

Pet. for Cert. 5 (internal quotation marks omitted). Ac­

cording to Keiser, Nassar’s letter shocked Fitz, who told

Keiser that, because Levine had been “publicly humili-

ated,” she should be “publicly exonerated.” App. 41. Fitz’s

opposition to Parkland’s hiring Nassar prompted the

Hospital to withdraw the offer to engage him. App. to Pet.

for Cert. 5–6.

After accepting a position at a smaller HIV/AIDS clinic

in Fresno, California, Nassar filed a complaint with the

Equal Employment Opportunity Commission (EEOC).

The agency found “credibl[e] testimonial evidence,” that

UTSW had retaliated against Nassar for his allegations of

discrimination by Levine. Brief for Respondent 8 (citing

Pl. Trial Exh. 78). Nassar then filed suit in District Court

alleging that UTSW had discriminated against him, in

violation of Title VII, on the basis of his race, religion, and

Cite as: 570 U. S. ____ (2013) 5

GINSBURG, J., dissenting

national origin, see §2000e–2(a), and had constructively

discharged him. App. to Pet. for Cert. 6; Complaint ¶23.

He further alleged that UTSW had retaliated against him

for complaining about Levine’s behavior. App. to Pet. for

Cert. 6.

On the retaliation claim, the District Court instructed

the jury that Nassar “[did] not have to prove that retalia­

tion was [UTSW’s] only motive, but he [had to] prove that

[UTSW] acted at least in part to retaliate.” Id., at 47. The

jury found UTSW liable for both constructive discharge

and retaliation. At the remedial phase, the judge charged

the jury not to award damages for “actions which [UTSW]

prove[d] by a preponderance of the evidence . . . it would

have taken even if it had not considered . . . Nassar’s

protected activity.” Id., at 42–43. Finding that UTSW

had not met its proof burden, the jury awarded Nassar

$438,167.66 in backpay and $3,187,500 in compensatory

damages. Id., at 43–44.1

The Court of Appeals for the Fifth Circuit affirmed in

part.2 Responding to UTSW’s argument that the District

Court erred in instructing the jury on a mixed-motive

theory of retaliation, the Fifth Circuit held that the in­

struction conformed to Circuit precedent. 674 F. 3d 448,

454, n. 16 (2012) (citing Smith v. Xerox Corp., 602 F. 3d

320, 330 (2010)).3

——————

1 The District Court reduced compensatory damages to $300,000, the

statutory cap under Title VII. See 42 U. S. C. §1981a(b)(3)(D).

2 The Court of Appeals found the evidence insufficient to support

the claim of constructive discharge and reversed the District Court’s

judgment to that extent. See App. to Pet. for Cert. 8–10. That ruling is

not contested here.

3 The Fifth Circuit has since reversed course in an unpublished opin­

ion, concluding that §2000e–2(m)’s motivating-factor prescription does

not apply to retaliation claims. See Carter v. Luminant Power Servs.

Co., No. 12–10642, 2013 WL 1337365 (Apr. 3, 2013).

6 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

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GINSBURG, J., dissenting

II

This Court has long acknowledged the symbiotic rela­

tionship between proscriptions on discrimination and pro-

scriptions on retaliation. Antidiscrimination provisions,

the Court has reasoned, endeavor to create a workplace

where individuals are not treated differently on account

of race, ethnicity, religion, or sex. See Burlington

Northern, 548 U. S., at 63. Antiretaliation provisions

“see[k] to secure that primary objective by preventing an

employer from interfering . . . with an employee’s efforts to

secure or advance enforcement of [antidiscrimination]

guarantees.” Ibid. As the Court has comprehended, “Title

VII depends for its enforcement upon the cooperation of

employees who are willing to file complaints and act as

witnesses.” Id., at 67. “ ‘[E]ffective enforcement,’ ” there­

fore, can “ ‘only be expected if employees . . . [feel] free to

approach officials with their grievances.’ ” Ibid. (quoting

Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288,

292 (1960)). See also Crawford, 555 U. S., at 279.

Adverting to the close connection between discrimina­

tion and retaliation for complaining about discrimination,

this Court has held, in a line of decisions unbroken until

today, that a ban on discrimination encompasses retalia­

tion. In Sullivan v. Little Hunting Park, Inc., 396 U. S.

229, 237 (1969), the Court determined that 42 U. S. C.

§1982, which provides that “[a]ll citizens of the United

States shall have the same right . . . as is enjoyed by white

citizens . . . to inherit, purchase, lease, sell, hold, and

convey real and personal property,” protected a white man

who suffered retaliation after complaining of discrimina­

tion against his black tenant. Jackson v. Birmingham

Board of Education elaborated on that holding in the

context of sex discrimination. “Retaliation against a per­

son because [he] has complained of sex discrimination,”

the Court found it inescapably evident, “is another form of

intentional sex discrimination.” 544 U. S., at 173. As the

Cite as: 570 U. S. ____ (2013) 7

GINSBURG, J., dissenting

Court explained:

“Retaliation is, by definition, an intentional act. It

is a form of ‘discrimination’ because the complainant is

being subject to differential treatment. Moreover, re­

taliation is discrimination ‘on the basis of sex’ because

it is an intentional response to the nature of the com­

plaint: an allegation of sex discrimination.” Id., at

173–174 (citations omitted).

Jackson interpreted Title IX of the Educational

Amendments of 1972, 20 U. S. C. §1681(a). Noting that

the legislation followed three years after Sullivan, the

Court found it “not only appropriate but also realistic to

presume that Congress was thoroughly familiar with

Sullivan and . . . expected its enactment of Title IX to be

interpreted in conformity with it.” 544 U. S., at 176 (in­

ternal quotation marks and alterations omitted).

Gómez-Pérez v. Potter, 553 U. S. 474 (2008), was similarly

reasoned. The Court there held that the federal-sector

provision of the Age Discrimination in Employment Act of

1967 (ADEA), 29 U. S. C. §633a(a), barring discrimination

“based on age,” also proscribes retaliation. 553 U. S., at

479–491. “What Jackson said about the relationship

between Sullivan and the enactment of Title IX,” the

Court observed, “can be said as well about the relation-

ship between Sullivan and the enactment of the ADEA’s

federal-sector provision.” Id., at 485. See also CBOCS West,

Inc. v. Humphries, 553 U. S. 442, 447–457 (2008) (retalia­

tion for race discrimination constitutes discrimination

based on race under 42 U. S. C. §1981). There is no sound

reason in this case to stray from the decisions in Sullivan,

Jackson, Gómez-Pérez, and CBOCS West.

III

A

The Title VII provision key here, §2000e–2(m), states

that “an unlawful employment practice is established

8 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

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GINSBURG, J., dissenting

when the complaining party demonstrates that race, color,

religion, sex, or national origin was a motivating factor for

any employment practice, even though other factors also

motivated the practice.” Section 2000e–2(m) was enacted

as part of the Civil Rights Act of 1991, which amended

Title VII, along with other federal antidiscrimination

statutes. See 105 Stat. 1071. The amendments were

intended to provide “additional protections against unlaw­

ful discrimination in employment,” id., §2(3), and to “re­

spon[d] to a number of . . . decisions by [this Court] that

sharply cut back on the scope and effectiveness” of antidis­

crimination laws, H. R. Rep. No. 102–40, pt. II, pp. 2–4

(1991) (hereinafter House Report Part II) (citing, inter

alia, Patterson v. McLean Credit Union, 491 U. S. 164

(1989); Martin v. Wilks, 490 U. S. 755 (1989); Lorance v.

AT&T Technologies, Inc., 490 U. S. 900 (1989)).

Among the decisions found inadequately protective was

Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). A

plurality of the Court in that case held that the words

“because of ” in §2000e–2(a) encompass claims challenging

an employment decision attributable to “mixed motives,”

i.e., one motivated by both legitimate and illegitimate

factors. See id., at 240–242.4 A Title VII plaintiff, the

plurality concluded, need show only that a prohibited

factor contributed to the employment decision—not that it

was the but-for or sole cause. Id., at 240–244. But see id.,

at 281–282 (KENNEDY, J., dissenting). An employer would

not be liable, however, if it could show by a preponderance

of the evidence that it would have taken the same action

absent the illegitimate motive. Id., at 244–245.

——————

4 Justices White and O’Connor separately concurred and would have

required the Title VII plaintiff to show that protected characteristics

constituted a substantial motivating factor in the adverse employment

decision. See Price Waterhouse v. Hopkins, 490 U. S. 228, 259 (1989)

(White, J., concurring in judgment); id., at 265 (O’Connor, J., concur­

ring in judgment).

Cite as: 570 U. S. ____ (2013) 9

GINSBURG, J., dissenting

Congress endorsed the plurality’s conclusion that, to be

actionable under Title VII, discrimination must be a moti­

vating factor in, but need not be the but-for cause of, an

adverse employment action. See House Report Part II, at

18. Congress disagreed with the Court, however, insofar

as the Price Waterhouse decision allowed an employer to

escape liability by showing that the same action would

have been taken regardless of improper motive. House

Report Part II, at 18. See also H. R. Rep. No. 102–40,

pt. I, pp. 45–48 (1991) (hereinafter House Report Part I).

“If Title VII’s ban on discrimination in employment is to

be meaningful,” the House Report explained, “victims of

intentional discrimination must be able to obtain relief,

and perpetrators of discrimination must be held liable for

their actions.” House Report Part II, at 18.

Superseding Price Waterhouse in part, Congress sought

to “restore” the rule of decision followed by several Cir­

cuits that any discrimination “actually shown to play a

role in a contested employment decision may be the sub­

ject of liability.” House Report Part II, at 18. See also

House Report Part I, at 48. To that end, Congress enacted

§2000e–2(m) and §2000e–5(g)(2)(B). The latter provides

that an employer’s proof that an adverse employment

action would have been taken in any event does not shield

the employer from liability; such proof, however, limits the

plaintiff ’s remedies to declaratory or injunctive relief,

attorney’s fees, and costs.

Critically, the rule Congress intended to “restore” was

not limited to substantive discrimination. As the House

Report explained, “the Committee endors[ed] . . . the

decisional law” in Bibbs v. Block, 778 F. 2d 1318 (CA8

1985) (en banc), which held that a violation of Title VII

is established when the trier of fact determines that “an

unlawful motive played some part in the employment

decision or decisional process.” Id., at 1323; see House

Report Part I, at 48. Prior to the 1991 Civil Rights Act,

10 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

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GINSBURG, J., dissenting

Bibbs had been applied to retaliation claims. See, e.g.,

Johnson v. Legal Servs. of Arkansas, Inc., 813 F. 2d 893,

900 (CA8 1987) (“Should the court find that retaliation

played some invidious part in the [plaintiff ’s] termination,

a violation of Title VII will be established under Bibbs.”).

See also EEOC v. General Lines, Inc., 865 F. 2d 1555, 1560

(CA10 1989).

B

There is scant reason to think that, despite Congress’

aim to “restore and strengthen . . . laws that ban discrimi­

nation in employment,” House Report Part II, at 2, Con­

gress meant to exclude retaliation claims from the newly

enacted “motivating factor” provision. Section 2000e–2(m)

provides that an “unlawful employment practice is estab­

lished” when the plaintiff shows that a protected charac­

teristic was a factor driving “any employment practice.”

Title VII, in §2000e–3(a), explicitly denominates retalia­

tion, like status-based discrimination, an “unlawful em­

ployment practice.” Because “any employment prac-

tice” necessarily encompasses practices prohibited

under §2000e–3(a), §2000e–2(m), by its plain terms, covers

retaliation.

Notably, when it enacted §2000e–2(m), Congress did

not tie the new provision specifically to §§2000e–2(a)–(d),

which proscribe discrimination “because of ” race, color,

religion, gender, or national origin. Rather, Congress

added an entirely new provision to codify the causation

standard, one encompassing “any employment practice.”

§2000e–2(m).

Also telling, §2000e–2(m) is not limited to situations in

which the complainant’s race, color, religion, sex, or na­

tional origin motivates the employer’s action. In contrast,

Title VII’s substantive antidiscrimination provisions refer

to the protected characteristics of the complaining party.

See §§2000e–2(a)(1)–(2), (c)(2) (referring to “such individu­

Cite as: 570 U. S. ____ (2013) 11

GINSBURG, J., dissenting

al’s” protected characteristics); §§2000e–2(b), (c)(1), (d) (re­

ferring to “his race, color, religion, sex, or national origin”).

Congress thus knew how to limit Title VII’s coverage

to victims of status-based discrimination when it was

so minded. It chose, instead, to bring within §2000e–

2(m) “any employment practice.” To cut out retaliation

from §2000e–2(m)’s scope, one must be blind to that

choice. Cf. Jackson, 544 U. S., at 179, n. 3 (omission of

reference to the complaining party’s sex in Title IX sup­

ports the conclusion that the statute protects a male plain­

tiff from retaliation in response to complaints about sex

discrimination against women).

C

From the inception of §2000e–2(m), the agency entrusted

with interpretation of Title VII and superintendence of

the Act’s administration, the EEOC, see §2000e–5, has

understood the provision to cover retaliation claims.

Shortly after Congress amended Title VII to include the

motivating-factor provision, the EEOC issued guidance

advising that, “[a]lthough [§2000e–2(m)] does not specify

retaliation as a basis for finding liability whenever it is a

motivating factor for an action, neither does it suggest

any basis for deviating from the Commission’s long­

standing rule that it will find liability . . . whenever

retaliation plays any role in an employment decision.”

EEOC, Revised Enforcement Guidance on Recent Devel­

opments in Disparate Treatment Theory, p. 20, n. 14 (July

14, 1992) (hereinafter EEOC Guidance), available at

http://www.eeoc.gov/policy/docs/disparat.html (as visited

June 21, 2013, and in Clerk of Court’s case file). As the

EEOC’s initial guidance explained, “if retaliation were to

go unremedied, it would have a chilling effect upon the

willingness of individuals to speak out against employ­

ment discrimination.” Ibid.

In its compliance manual, the EEOC elaborated on its

12 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

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GINSBURG, J., dissenting

conclusion that “[§2000e–2(m)] applies to retaliation.” 2

EEOC Compliance Manual §8–II(E)(1), p. 614:0008, n. 45

(May 20, 1998) (hereinafter EEOC Compliance Manual).

That reading, the agency observed, tracked the view,

widely held by courts, “that the evidentiary framework for

proving employment discrimination based on race, sex, or

other protected class status also applies to claims of dis­

crimination based on retaliation.” Ibid. “[A]n interpreta­

tion of [§2000e–2(m)] that permit[ted] proven retaliation

to go unpunished,” the EEOC noted, would “undermin[e]

the purpose of the anti-retaliation provisions of maintain­

ing unfettered access to the statutory remedial mecha­

nism.” Ibid.

The position set out in the EEOC’s guidance and com­

pliance manual merits respect. See Skidmore v. Swift &

Co., 323 U. S. 134, 140 (1944); Federal Express Corp. v.

Holowecki, 552 U. S. 389, 399 (2008) (“[EEOC’s] policy

statements, embodied in its compliance manual and inter­

nal directives . . . reflect a body of experience and informed

judgment. . . . As such, they are entitled to a measure of

respect under the less deferential Skidmore standard.”

(internal quotation marks omitted)). If the breadth of

§2000e–2(m) can be deemed ambiguous (although I believe

its meaning is plain), the provision should be construed to

accord with the EEOC’s well-reasoned and longstanding

guidance.

IV

The Court draws the opposite conclusion, ruling that

retaliation falls outside the scope of §2000e–2(m). In so

holding, the Court ascribes to Congress the unlikely pur­

pose of separating retaliation claims from discrimination

claims, thereby undermining the Legislature’s effort to

fortify the protections of Title VII. None of the reasons the

Court offers in support of its restrictive interpretation of

§2000e–2(m) survives inspection.

Cite as: 570 U. S. ____ (2013) 13

GINSBURG, J., dissenting

A

The Court first asserts that reading §2000e–2(m) to

encompass claims for retaliation “is inconsistent with the

provision’s plain language.” Ante, at 12. The Court

acknowledges, however, that “the text of the motivating­

factor provision . . . begins by referring to unlawful em­

ployment practices,” a term that undeniably includes

retaliation. Ibid. (internal quotation marks omitted).

Nevermind that, the Court continues, for §2000e–2(m)

goes on to reference as “motivating factor[s]” only “race,

color, religion, sex, or national origin.” The Court thus

sees retaliation as a protected activity entirely discrete

from status-based discrimination. Ibid.

This vision of retaliation as a separate concept runs up

against precedent. See supra, at 6–7. Until today, the

Court has been clear eyed on just what retaliation is: a

manifestation of status-based discrimination. As Jackson

explained in the context of sex discrimination, “retalia­

tion is discrimination ‘on the basis of sex’ because it is

an intentional response to the nature of the complaint: an

allegation of sex discrimination.” 544 U. S., at 174.

The Court does not take issue with Jackson’s insight.

Instead, it distinguishes Jackson and like cases on the

ground that they concerned laws in which “Congress’

treatment of the subject of prohibited discrimination was

both broad and brief.” Ante, at 15. Title VII, by contrast,

“is a detailed statutory scheme,” that “enumerates specific

unlawful employment practices,” “defines key terms,” and

“exempts certain types of employers.” Ante, at 16. Accord­

ingly, the Court says, “it would be improper to indulge

[the] suggestion that Congress meant to incorporate [in

Title VII] the default rules that apply only when Congress

writes a broad and undifferentiated statute.” Ibid.

It is strange logic indeed to conclude that when Con­

gress homed in on retaliation and codified the proscrip­

tion, as it did in Title VII, Congress meant protection

14 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

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GINSBURG, J., dissenting

against that unlawful employment practice to have less

force than the protection available when the statute does

not mention retaliation. It is hardly surprising, then, that

our jurisprudence does not support the Court’s conclusion.

In Gómez-Pérez, the Court construed the federal-sector

provision of the ADEA, which proscribes “discrimination

based on age,” 29 U. S. C. §633a(a), to bar retaliation. The

Court did so mindful that another part of the Act, the

provision applicable to private-sector employees, explicitly

proscribes retaliation and, moreover, “set[s] out a specific

list of forbidden employer practices.” Gómez-Pérez, 553

U. S., at 486–487 (citing 29 U. S. C. §§623(a) and (d)).

The Court suggests that “the la[w] at issue in . . .

Gómez-Pérez [was a] broad, general ba[r] on discrimina­

tion.” Ante, at 15. But, as our opinion in that case ob­

serves, some of the ADEA’s provisions are brief, broad,

and general, while others are extensive, specific, and

detailed. 553 U. S., at 487. So too of Title VII. See ibid.

(“The ADEA federal-sector provision was patterned di­

rectly after Title VII’s federal-sector discrimination ban . . .

[which] contains a broad prohibition of ‘discrimination,’

rather than a list of specific prohibited practices.” (some

internal quotation marks omitted)). It makes little sense

to apply a different mode of analysis to Title VII’s §2000e–

2(m) and the ADEA’s §633a(a), both brief statements on

discrimination in the context of larger statutory schemes.5

——————

5 The Court obscures the inconsistency between today’s opinion and

Gómez-Pérez by comparing §633a to all of Title VII. See ante, at 16

(“Unlike Title IX, §1981, §1982, and the federal-sector provisions of the

ADEA, Title VII is a detailed statutory scheme.”). That comparison is

inapt. Like Title VII, the ADEA is a “detailed statutory scheme.” Ibid.

Compare ibid. (citing Title VII provisions that proscribe status-based

discrimination by employers, employment agencies, labor organiza­

tions, and training programs; bar retaliation; prohibit advertising a

preference for certain protected characteristics; define terms; exempt

certain employers; and create an agency with rulemaking and enforce­

ment authority), with 29 U. S. C. §§623(a)–(e) (proscribing age discrim­

Cite as: 570 U. S. ____ (2013) 15

GINSBURG, J., dissenting

The Court’s reliance on §109(b) of the Civil Rights Act of

1991, 105 Stat. 1077,6 and the Americans with Disabilities

Act of 1990 (ADA), 104 Stat. 327, is similarly unavailing.

According to the Court, Congress’ explicit reference to

§2000e–3(a) in §109(b) “reinforc[es] the conclusion that

Congress acted deliberately when it omitted retaliation

claims from §2000e–2(m).” Ante, at 13. The same is true

of the ADA, the Court says, as “Congress provided not

just a general prohibition on discrimination ‘because of

[an individual’s] disability,’ but also seven paragraphs of

detailed description of the practices that would constitute

the prohibited discrimination . . . [a]nd . . . an express

antiretaliation provision.” Ante, at 17.

This argument is underwhelming. Yes, Congress has

sometimes addressed retaliation explicitly in antidiscrim­

ination statutes. When it does so, there is no occasion for

interpretation. But when Congress simply targets dis­

crimination “because of ” protected characteristics, or, as

in §2000e–2(m), refers to employment practices motivated

by race, color, religion, sex, or national origin, how should

courts comprehend those phrases? They should read them

informed by this Court’s consistent holdings that such

phrases draw in retaliation, for, in truth, retaliation is a

——————

ination by employers, employment agencies, and labor unions; barring

retaliation; prohibiting advertising a preference for employees of a

particular age), §628 (granting rulemaking authority to the EEOC), and

§630 (defining terms). Thus, §633a is just like §2000e–2(m) in the

relevant respect: both are single provisions comprised within a detailed

scheme.

6 Now codified at 42 U. S. C. §2000e–1(b), §109(b) provides:

“It shall not be unlawful under §2000e–2 or 2000e–3 . . . for an em­

ployer . . . to take any action otherwise prohibited by such section, with

respect to an employee in a workplace in a foreign country if compliance

with such section would cause such employer . . . to violate the law of

the foreign country in which such workplace is located.” The provision

was framed to accord with this Court’s decision in EEOC v. Arabian

American Oil Co., 499 U. S. 244 (1991).

16 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

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GINSBURG, J., dissenting

“form of intentional [status-based] discrimination.” See

Jackson, 544 U. S., at 173, described supra, at 6–7. That

is why the Court can point to no prior instance in which an

antidiscrimination law was found not to cover retaliation.

The Court’s volte-face is particularly imprudent in the

context of §2000e–2(m), a provision added as part of Con­

gress’ effort to toughen protections against workplace

discrimination.

B

The Court also disassociates retaliation from status­

based discrimination by stressing that the bar on the

latter appears in §2000e–2, while the proscription of retal­

iation appears in a separate provision, §2000e–3. Section

2000e–2, the Court asserts, “contains Title VII’s ban on

status-based discrimination . . . and says nothing about

retaliation.” Ante, at 13. Retaliation, the Court therefore

concludes, should not be read into §2000e–2(m). Ante, at

13–14.

The Court’s reasoning rests on a false premise. Section

2000e–2 does not deal exclusively with discrimination

based on protected characteristics. The provisions stated

after §§2000e–2(a)–(d) deal with a variety of matters,

some of them unquestionably covering retaliation. For

example, §2000e–2(n), enacted in tandem with and located

immediately after §2000e–2(m), limits opportunities to

collaterally attack employment practices installed to im­

plement a consent judgment. Section 2000e–2(n) applies

beyond the substantive antidiscrimination provisions in

§2000e–2; indeed, it applies beyond Title VII to encom­

pass claims “under the Constitution or [other] Federal

civil rights laws.” §2000e–2(n)(1)(A). Thus, if an employee

sues for retaliatory discharge in violation of §2000e–3(a),

and a consent judgment orders reinstatement, any person

adversely affected by that judgment (e.g., an employee

who loses seniority as a result) would generally be barred

Cite as: 570 U. S. ____ (2013) 17

GINSBURG, J., dissenting

from attacking the judgment if she was given actual no-

tice of the proposed order and a reasonable opportunity to

present objections. That Congress placed the consent­

judgment provision in §2000e–2 and not in §2000e–3 is of

no moment. As the text of the provision plainly conveys,

§2000e–2(n) would reach consent judgments settling

complaints about retaliation, just as it would cover con­

sent judgments settling complaints about status-based

discrimination.

Section 2000e–2(g) is similarly illustrative. Under that

provision, “it shall not be an unlawful employment prac­

tice for an employer . . . to discharge [an] individual” if she

fails to fulfill any requirement imposed in the interest of

national security. Because §2000e–3(a) renders retal-

iation an “unlawful employment practice,” §2000e–2(g)’s

exemption would no doubt apply to a Title VII retaliatory

discharge claim. Given these provisions, Congress’ place­

ment of the motivating-factor provision within §2000e–2

cannot bear the weight the Court places on it.7

C

The Court gives no deference to the EEOC’s longstand­

ing position that §2000e–2(m) applies to retaliation be­

cause, the Court charges, the agency did not “address the

particular interplay among the status-based antidiscrimi­

——————

7 The Court’s assertion that we “confronted a similar structural dis­

pute in Lehman v. Nakshian, 453 U. S. 156 (1981),” ante, at 17, as­

sumes its own conclusion. As the Court explains, in Nakshian, the

plaintiff argued that §633a of the ADEA afforded the right to trial by

jury. 453 U. S., at 157. An amendment to the private-sector provision,

codified at 29 U. S. C. §626(c), granted that right to plaintiffs suing

private employers, as well as state and local governmental entities.

But no one argued in Nakshian that the private-sector amendment

applied to the federal-sector provision. Hence, Nakshian’s holding that

the ADEA does not permit a federal-sector plaintiff to try her case

before a jury is relevant only if the Court is correct that §2000e–2(m)

does not cover retaliation claims.

18 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

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GINSBURG, J., dissenting

nation provision (§2000e–2(a)), the antiretaliation provi­

sion (§2000e–3(a)), and the motivating-factor provision

(§2000e–2(m)).” Ante, at 21. Not so.

In its compliance manual, the EEOC noted that some

courts had concluded that §2000e–2(m) does not cover

retaliation, citing as an example Woodson v. Scott Paper

Co., 109 F. 3d 913 (CA3 1997). In that decision, the Third

Circuit acknowledged it was “given pause by the fact that

. . . courts have generally borrowed from discrimination

law in determining the burdens and order of proof in

retaliation cases.” Id., at 934. One could therefore say,

the Third Circuit continued, that “Congress knew of the

practice of borrowing in retaliation cases, and presumed

that courts would continue this practice after the 1991

Act.” Ibid.

While Woodson rejected that argument, the EEOC

found it sound. See EEOC Compliance Manual, at

614:0008, n. 45 (“Courts have long held that the eviden­

tiary framework for proving employment discrimination

based on race, sex, or other protected class status also

applies to claims of discrimination based on retaliation.”).

See also EEOC Guidance, at 20, n. 14 (while §2000e–2(m)

does not explicitly refer to retaliation, nothing in the

provision calls for deviation from the longstanding practice

of finding liability when a plaintiff demonstrates that

retaliatory intent motivated an adverse employment

decision). By adverting to Woodson, the EEOC made clear

that it considered the very argument the Court relies on

today. Putting down the agency’s appraisal as “generic,”

ante, at 22, is thus conspicuously unfair comment.

The Court’s second reason for refusing to accord de-

ference to the EEOC fares no better. The EEOC’s conclu-

sion that “the lessened causation standard is necessary in

order to prevent ‘proven retaliation’ from ‘go[ing] unpun­

ished,’ ” the Court reasons, “is circular” because it “as­

sumes the answer to the central question at issue here,

Cite as: 570 U. S. ____ (2013) 19

GINSBURG, J., dissenting

which is what causal relationship must be shown in order

to prove retaliation.” Ibid. That reasoning will not wash.

Under the motivating-factor test set out in §2000e–2(m), a

plaintiff prevails if she shows that proscribed conduct “was

a motivating factor” for the adverse employment action

she encountered, “even though other factors also moti-

vated the [action].” She will succeed, although the relief to

which she is entitled may be restricted. See supra, at 9.

Under the Court’s view, proof that retaliation was a factor

motivating an adverse employment action is insufficient to

establish liability under §2000e–3(a). The Court’s but-for

causation standard does not mean that the plaintiff has

failed to prove she was subjected to unlawful retaliation.

It does mean, however, that proof of a retaliatory motive

alone yields no victory for the plaintiff. Put otherwise, the

Court’s view “permits proven retaliation to go unpun­

ished,” just as the EEOC recognized. See EEOC Compli­

ance Manual, at 614:0008, n. 45.

V

A

Having narrowed §2000e–2(m) to exclude retaliation

claims, the Court turns to Gross v. FBL Financial Ser­

vices, Inc., 557 U. S. 167 (2009), to answer the question

presented: Whether a plaintiff must demonstrate but-for

causation to establish liability under §2000e–3(a).

The Court held in Gross that, in contrast to Title VII,

§623(a) of the ADEA does not authorize any age discrimi­

nation claim asserting mixed motives. Explaining that

uniform interpretation of the two statutes is sometimes

unwarranted, the Court noted in Gross that the phrase

“because of . . . age” in §623(a) has not been read “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.” 557 U. S., at 175, n. 2. Yet Gross,

20 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

GINSBURG, J., dissenting

which took pains to distinguish ADEA claims from Title

VII claims, is invoked by the Court today as pathmarking.

See ante, at 2 (“The holding and analysis of [Gross] are

instructive here.”).

The word “because” in Title VII’s retaliation provision,

§2000e–3(a), the Court tells us, should be interpreted not

to accord with the interpretation of that same word in the

companion status-based discrimination provision of Ti-

tle VII, §2000e–2(a). Instead, statutory lines should be

crossed: The meaning of “because” in Title VII’s retaliation

provision should be read to mean just what the Court held

“because” means for ADEA-liability purposes. But see

Gross, 557 U. S., at 174 (“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.’ ”(quoting Holowecki, 552

U. S., at 393)). In other words, the employer prevailed in

Gross because, according to the Court, the ADEA’s anti­

discrimination prescription is not like Title VII’s. But the

employer prevails again in Nassar’s case, for there is no

“meaningful textual difference,” ante, at 11, between the

ADEA’s use of “because” and the use of the same word in

Title VII’s retaliation provision. What sense can one make

of this other than “heads the employer wins, tails the

employee loses”?

It is a standard principle of statutory interpretation that

identical phrases appearing in the same statute—here,

Title VII—ordinarily bear a consistent meaning. See

Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S.

224, 232 (2007). Following that principle, Title VII’s

retaliation provision, like its status-based discrimination

provision, would permit mixed-motive claims, and the

same causation standard would apply to both provisions.

B

The Court’s decision to construe §2000e–3(a) to require

Cite as: 570 U. S. ____ (2013) 21

GINSBURG, J., dissenting

but-for causation in line with Gross is even more con­

founding in light of Price Waterhouse. Recall that Price

Waterhouse interpreted “because of ” in §2000e–2(a) to

permit mixed-motive claims. See supra, at 8. The Court

today rejects the proposition that, if §2000e–2(m) does not

cover retaliation, such claims are governed by Price Water­

house’s burden-shifting framework, i.e., if the plaintiff

shows that discrimination was a motivating factor in an

adverse employment action, the defendant may escape

liability only by showing it would have taken the same

action had there been no illegitimate motive. It is wrong

to revert to Price Waterhouse, the Court says, because the

1991 Civil Rights Act’s amendments to Title VII abrogated

that decision.

This conclusion defies logic. Before the 1991 amend­

ments, several courts had applied Price Waterhouse’s

burden-shifting framework to retaliation claims.8 In the

Court’s view, Congress designed §2000e–2(m)’s motivating­

factor standard not only to exclude retaliation claims, but

also to override, sub silentio, Circuit precedent apply-

ing the Price Waterhouse framework to such claims. And

with what did the 1991 Congress replace the Price Water­

house burden-shifting framework? With a but-for causa­

tion requirement Gross applied to the ADEA 17 years

after the 1991 amendments to Title VII. Shut from the

Court’s sight is a legislative record replete with state­

ments evincing Congress’ intent to strengthen antidis­

crimination laws and thereby hold employers accountable

for prohibited discrimination. See Civil Rights Act of

1991, §2, 105 Stat. 1071; House Report Part II, at 18. It is

an odd mode of statutory interpretation that divines Con­

gress’ aim in 1991 by looking to a decision of this Court,

——————

8 See Vislisel v. Turnage, 930 F. 2d 9, 9–10 (CA8 1991); Carter v.

South Central Bell, 912 F. 2d 832, 843 (CA5 1990); Williams v.

Mallinckrodt, 892 F. 2d 75 (CA4 1989) (table).

22 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

GINSBURG, J., dissenting

Gross, made under a different statute in 2008, while ignor­

ing the overarching purpose of the Congress that enacted

the 1991 Civil Rights Act, see supra, at 8–10.

C

The Court shows little regard for trial judges who must

instruct juries in Title VII cases in which plaintiffs allege

both status-based discrimination and retaliation. Nor is

the Court concerned about the capacity of jurors to follow

instructions conforming to today’s decision. Causation is a

complicated concept to convey to juries in the best of cir­

cumstances. Asking jurors to determine liability based on

different standards in a single case is virtually certain to

sow confusion. That would be tolerable if the governing

statute required double standards, but here, for the rea­

sons already stated, it does not.

VI

A

The Court’s assertion that the but-for cause require­

ment it adopts necessarily follows from §2000e–3(a)’s use

of the word “because” fails to convince. Contrary to the

Court’s suggestion, see ante, at 5–6, the word “because”

does not inevitably demand but-for causation to the exclu­

sion of all other causation formulations. When more than

one factor contributes to a plaintiff ’s injury, but-for causa­

tion is problematic. See, e.g., 1 Restatement (Third) of

Torts §27, Comment a, p. 385 (2005) (noting near univer­

sal agreement that the but-for standard is inappropriate

when multiple sufficient causes exist) (hereinafter Re­

statement Third); Restatement of Torts §9, Comment b,

p. 18 (1934) (legal cause is a cause that is a “substantial

factor in bringing about the harm”).

When an event is “overdetermined,” i.e., when two forces

create an injury each alone would be sufficient to cause,

modern tort law permits the plaintiff to prevail upon

Cite as: 570 U. S. ____ (2013) 23

GINSBURG, J., dissenting

showing that either sufficient condition created the harm.

Restatement Third §27, at 376–377. In contrast, under

the Court’s approach (which it erroneously calls “textbook

tort law,” ante, at 6), a Title VII plaintiff alleging retalia­

tion cannot establish liability if her firing was prompted

by both legitimate and illegitimate factors. Ante, at

18–19.

Today’s opinion rehashes arguments rightly rejected in

Price Waterhouse. Concurring in the judgment in that

case, Justice O’Connor recognized the disconnect between

the standard the dissent advocated, which would have

imposed on the plaintiff the burden of showing but-for

causation, see 490 U. S., at 282, 286–287 (KENNEDY, J.,

dissenting), and the common-law doctrines on which the

dissent relied. As Justice O’Connor explained:

“[I]n the area of tort liability, from whence the dis­

sent’s ‘but-for’ standard of causation is derived, . . .

the law has long recognized that in certain ‘civil cases’

leaving the burden of persuasion on the plaintiff to

prove ‘but-for’ causation would be both unfair and de­

structive of the deterrent purposes embodied in the

concept of duty of care. Thus, in multiple causation

cases, where a breach of duty has been established,

the common law of torts has long shifted the burden of

proof to . . . defendants to prove that their negligent

actions were not the ‘but-for’ cause of the plaintiff ’s

injury.” Id., at 263–264 (concurring in judgment) (cit­

ing Summers v. Tice, 33 Cal. 2d 80, 84–87, 199 P. 2d

1, 3–4 (1948)).

Justice Brennan’s plurality opinion was even less solici­

tous of the dissent’s approach. Noting that, under the

standard embraced by the dissent in Price Waterhouse,

neither of two sufficient forces would constitute cause even

if either one alone would have led to the injury, the plural­

ity remarked: “We need not leave our common sense at the

doorstep when we interpret a statute.” 490 U. S., at 241.

24 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL

CENTER v. NASSAR

GINSBURG, J., dissenting

B

As the plurality and concurring opinions in Price Water­

house indicate, a strict but-for test is particularly ill suited

to employment discrimination cases. Even if the test is

appropriate in some tort contexts, “it is an entirely differ­

ent matter to determine a ‘but-for’ relation when . . .

consider[ing], not physical forces, but the mind-related

characteristics that constitute motive.” Gross, 557 U. S., at

190 (BREYER, J., dissenting). When assessing an employ­

er’s multiple motives, “to apply ‘but-for’ causation is to

engage in a hypothetical inquiry about what would have

happened if the employer’s thoughts and other circum­

stances had been different.” Id., at 191. See also Price

Waterhouse, 490 U. S., at 264 (opinion of O’Connor, J.)

(“ ‘[A]t . . . times the [but-for] test demands the impossible.

It challenges the imagination of the trier to probe into a

purely fanciful and unknowable state of affairs.’ ” (quoting

Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev.

60, 67 (1956))).

This point, lost on the Court, was not lost on Congress.

When Title VII was enacted, Congress considered and

rejected an amendment that would have placed the word

“solely” before “because of [the complainant’s] race, color,

religion, sex, or national origin.” See 110 Cong. Rec. 2728,

13837–13838 (1964). Senator Case, a prime sponsor of

Title VII, commented that a “sole cause” standard would

render the Act “totally nugatory.” Id., at 13837. Life does

not shape up that way, the Senator suggested, comment­

ing “[i]f anyone ever had an action that was motivated by

a single cause, he is a different kind of animal from any

I know of.” Ibid.

* * *

The Court holds, at odds with a solid line of decisions

recognizing that retaliation is inextricably bound up with

status-based discrimination, that §2000e–2(m) excludes

Cite as: 570 U. S. ____ (2013) 25

GINSBURG, J., dissenting

retaliation claims. It then reaches outside of Title VII to

arrive at an interpretation of “because” that lacks sensitiv­

ity to the realities of life at work. In this endeavor, the

Court is guided neither by precedent, nor by the aims

of legislators who formulated and amended Title VII. In-

deed, the Court appears driven by a zeal to reduce the

number of retaliation claims filed against employers. See

ante, at 18–19. Congress had no such goal in mind when

it added §2000e–2(m) to Title VII. See House Report Part

II, at 2. Today’s misguided judgment, along with the

judgment in Vance v. Ball State Univ., post, p. 1, should

prompt yet another Civil Rights Restoration Act.

For the reasons stated, I would affirm the judgment of

the Fifth Circuit.