The meaning of "because" in employment discrimination law: Causation in title VII retaliation cases after gross

University of Chicago Law Review

Volumn 78, Issue 3, 2011, Pages 1031-1061

  Kenny, Andrew ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 84856975943     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (226)

1. Pub L No 88-352, 78 Stat 253
2. codified as amended at 42 USC § 2000e et seq.
3. Pub L No 90-202, 81 Stat 602
4. codified as amended at 29 USC §§ 621-34.
5. See 42 USC § 2000e-2002 (a);
6. 29 USC § 623 (a).
7. See 42 USC § 2000e-2003 (a);
8. 29 USC § 623 (d).
9. 490 US 228(1989).
10. There are two separate types of burden shifting available in employment discrimination cases. This Comment uses the term "burden shifting" only in the mixed-motive sense-meaning when the plaintiff shifts the burden of proof to the employer by showing that a protected characteristic played a part in the employer's decision to take adverse action against the employee. The other approach involves so-called "pretext" claims. See McDonnell Douglas Corp v Green, 411 US 792, 802-03(1973). A pretext claim involves the plaintiff making out a prima facie case of discrimination, which then requires the employer to articulate a legitimate, nondiscriminatory reason for its action. If the employer does so, then the burden of proof returns to the plaintiff, who must prove that the employer's proffered reason is pretextual.
11. Although the Supreme Court did not address the continuing viability of the McDonnell Douglas pretext framework in Gross v FBL Financial Services, Inc, 129 S Ct 2343(2009), lower courts that have faced the issue continue to apply the pretext analysis.
12. See, for example, Gorzynski v Jetblue Airways Corp, 596 F3d 93, 106 (2d Cir 2010);
13. Geiger v Tower Automotive, 579 F3d 614, 622 (6th Cir 2009);
14. Smith v City of Allentown, 589 F3d 684, 691 (3d Cir 2009).
15. Price Waterhouse, 490 US at 244-45 (plurality).
16. 129 S Ct 2343(2009).
17. See Civil Rights Act of 1991 § 107 (a), Pub L No 102-166, 105 Stat 1071, 1075
18. codified at 42 USC § 2000e-2002 (m).
19. See Gross, 129 S Ct at 2349.
20. *2 (ED Pa);
21. Hayes v Sebelius, 762 F Supp 2d 90, 111-13 (DDC 2011);
22. Beckford v Giethner, 661 F Supp 2d 17, 25 n 3 (DDC 2009).
23. Fairley v Andrews, 578 F3d 518, 525-26 (7th Cir 2009).
24. See also Serwatka v Rockwell Automation, Inc, 591 F3d 957, 961-62 (7th Cir 2010).
25. See Smith v Xerox Corp, 602 F3d 320, 325-30 (5th Cir 2010);
26. Nuskey v Hochberg, 730 F Supp 2d 1, 5 (DDC 2010).
27. See David Sherwyn and Michael Heise, The Gross Beast of Burden of Proof: Experimental Evidence on How the Burden of Proof Influences Employment Discrimination Case Outcomes, 42 Ariz St L J 901, 933-37(2010).
28. See Kevin M. Clermont and Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv J L & Pub Pol 103, 104-05(2009).
29. See Protecting Older Workers against Discrimination Act, HR 3721, 111th Cong, 1st Sess
30. in 155 Cong Rec H 10518 (daily ed Oct. 6, 2009) (introducing a bill "[t]o amend the Age Discrimination in Employment Act of 1967 to clarify the appropriate [mixed-motive] standard of proof"). Some commentators have argued that Gross was simply wrongly decided and have urged congressional intervention.
31. See, for example, Michael C. Harper, The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991, 58 Buff L Rev 69, 70(2010).
32. See H. R. 3721: Protecting Older Workers against Discrimination Act (GovTrack 2011), online at http://www.govtrack.us/congress/bill.xpd?bill=h111- 3721 (visited Apr. 18, 2011).
33. 42 USC § 2000e-2002 (a) (1).
34. 42 USC § 2000e-2003 (a).
35. While several statutes are potentially affected by the Supreme Court's decision in Gross, this Comment focuses on Title VII, because Title VII and the ADEA are the cornerstones of employment discrimination law, generating the most lawsuits by far. See William R. Corbett, Babbling about Employment Discrimination Law: Does the Master Builder Understand the Blueprint for the Great Tower?, 12 U Pa J Bus L 683, 692-93 n 39(2010).
36. 29 USC § 623 (a) (1) (emphasis added).
37. See 42 USC § 2000e-2002 (a) (1) (discrimination);
38. 42 USC § 2000e-2003 (a) (retaliation).
39. Price Waterhouse, 490 US at 235 (plurality).
40. Price Waterhouse, 490 US at 242-43 (plurality).
41. See, for example, United States Postal Service Board of Governors v Aikens, 460 US 711, 716(1983) ("[T]he question facing triers of fact in discrimination cases is both sensitive and difficult.... There will seldom be 'eyewitness' testimony as to the employer's mental processes.").
42. Price Waterhouse, 490 US at 241-42 (plurality); id at 259-60 (White concurring); id at 276 (O'Connor concurring) (agreeing with Justice Byron White and the plurality and adding that the plaintiff must prove by "direct evidence," rather than mere inferences, "that an illegitimate criterion was a substantial factor in the decision"). For a summary of the "splintered" Price Waterhouse decision
43. see Gross, 129 S Ct at 2347.
44. See Civil Rights Act of 1991, HR Rep No 102-40, 102d Cong, 1st Sess 47-48(1991)
45. reprinted in 1991 USCCAN 549, 583-87 (emphasizing that Price Waterhouse implicitly condones racism and sexism so long as it is not the causal factor and finding that "[l]egislation is needed to restore Title VII's comprehensive ban on all impermissible consideration of race, color, religion, sex or national origin in employment").
46. See also Beckham v National Railroad Passenger Corp, 736 F Supp 2d 130, 142 (DDC 2010) (noting that "Congress [in 1991] approved the first of these points [burden shifting], but not the second [the employer's complete defense]").
47. Pub L No 102-166, 105 Stat 1071
48. codified as amended at 42 USC § 2000e et seq.
49. Civil Rights Act of 1991 § 107 (a) - (b), 105 Stat at 1075-76
50. codified as amended at 42 USC §§ 2000e-2002, 2000e-5 (g).
51. See Gross, 129 S Ct at 2356 (Stevens dissenting) (referring to "Congress' partial ratification of Price Waterhouse" in the 1991 Act).
52. 42 USC § 2000e-2002 (m).
53. See 42 USC § 2000e-2005 (g) (2) (B).
54. See HR Rep No 102-40 at 44 (cited in note 31) (noting the need to overturn the but-for aspect of Price Waterhouse and replace it with a more lenient standard that awards at least some relief where consideration of a protected characteristic "actually contributed or was otherwise a factor in an employment decision or action").
55. See Price Waterhouse, 490 US at 281 (Kennedy dissenting) ("By any normal understanding, the phrase 'because of' conveys the idea that the motive in question made a difference to the outcome.").
56. 42 USC § 2000e-2003 (a).
57. 29 USC § 623 (a).
58. See, for example, Americans with Disabilities Act of 1990 § 103 (a), Pub L No 101-336, 104 Stat 327, 331-32 (prohibiting employment discrimination "against a qualified individual with a disability because of the disability");
59. Equal Pay Act of 1963 § 2, Pub L No 88-38, 77 Stat 56, 56-57
60. codified in relevant part at 29 USC § 206 (d).
61. See also Genetic Information Nondiscrimination Act of 2008 §§ 202-03, Pub L No 110-233, 122 Stat 881, 907-09
62. codified in relevant part at 42 USC § 2000ff-4.
63. It appears that this circumstance is not unique. Professor Deborah Widiss has explored the difficulty Congress experiences in attempting to override judicial decisions. She points out that Congress often amends one statute to purportedly overrule a Supreme Court decision, which then leaves the lower courts unsure of how to apply the overruled precedent in related (and unamended) contexts. See Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L Rev 511, 523(2009) (observing that lower courts often interpret congressional overrides as narrow exceptions to general precedents and continue to apply the "overruled" precedent in other contexts even when it is doubtful that this is what Congress intended).
64. It is entirely possible, as some commentators have suggested, that Congress's failure to codify the new burden-shifting framework in other contexts was just "a glaring oversight." See Thomas H. Barnard and George S. Crisci, "Mixed-Motive" Discrimination under the Civil Rights Act of 1991: Still a "Pyrrhic Victory" for Plaintiffs?, 51 Mercer L Rev 673, 687-90(2000).
65. See Widiss, 84 Notre Dame L Rev at 514 (cited in note 41) ("[B]ecause Congress technically cannot overrule judicial decisions, the interpretation of overrides poses a particular challenge within a judicial system that is built on adherence to precedent.").
66. See De Llano v North Dakota State University, 951 F Supp 168, 170-71 (D ND 1997) (asserting that it would be "illogical and contrary to congressional intent to apply different standards of proof and accompanying relief provisions to retaliation claims as opposed to discrimination claims");
67. Heywood v Samaritan Health System, 902 F Supp 1076, 1080-81 (D Ariz 1995) (quoting the legislative history of the 1991 Act for the proposition that Congress intended to overrule Price Waterhouse, which makes it "reasonable to assume" that the amended framework is also meant to apply to retaliation claims).
68. See Tanca v Nordberg, 98 F3d 680, 682-84 (1st Cir 1996);
69. Matima v Celli, 228 F3d 68, 81 (2d Cir 2000);
70. Woodson v Scott Paper Co, 109 F3d 913, 931-35 (3d Cir 1997);
71. Kubicko v Ogden Logistics Services, 181 F3d 544, 552 n 7 (4th Cir 1999);
72. Speedy v Rexnord Corp, 243 F3d 397, 401-02 (7th Cir 2001);
73. Norbeck v Basin Electric Power Cooperative, 215 F3d 848, 852 (8th Cir 2000);
74. Pennington v City of Huntsville, 261 F3d 1262, 1269 (11th Cir 2001).
75. In addition to the cases cited in note 45, see Fabela v Socorro Independent School District, 329 F3d 409, 414-15 (5th Cir 2003);
76. Smith v City of Salem, 378 F3d 566, 574-76 (6th Cir 2004);
77. Stegall v Citadel Broadcasting Co, 350 F3d 1061, 1071-72 (9th Cir 2003);
78. Fye v Oklahoma Corporation Commission, 516 F3d 1217, 1224-25 (10th Cir 2008).
79. For a review of these interim decisions, see Barnard and Crisci, 51 Mercer L Rev at 687-90 (cited in note 42).
80. See Febres v Challenger Caribbean Corp, 214 F3d 57, 60 (1st Cir 2000);
81. Ostrowski v Atlantic Mutual Insurance Co, 968 F2d 171, 180-81 (2d Cir 1992);
82. Starceski v Westinghouse Electric Corp, 54 F3d 1089, 1095-98 (3d Cir 1995);
83. EEOC v Warfield-Rohr Casket Co, 364 F3d 160, 164 n 2 (4th Cir 2004);
84. Rachid v Jack in the Box, Inc, 376 F3d 305, 309 (5th Cir 2004);
85. Wexler v White's Fine Furniture, Inc, 317 F3d 564, 571-72 (6th Cir 2003);
86. Visser v Packer Engineering Associates, Inc, 924 F2d 655, 658 (7th Cir 1991) (en banc);
87. Hutson v McDonnell Douglas Corp, 63 F3d 771, 780 (8th Cir 1995);
88. Lewis v YMCA, 208 F3d 1303, 1305-06 (11th Cir 2000) (per curiam).
89. See also Gross, 129 S Ct at 2354-55 (Stevens dissenting) ("[T]he Courts of Appeals to have considered the issue [of whether to apply burden shifting in the age discrimination context] unanimously have applied Price Waterhouse to ADEA claims."). Gross overruled these previous cases.
90. See Gross, 129 S Ct at 2346.
91. Id at 2350, citing Webster's Third New International Dictionary 194 (Merriam-Webster 3d ed 1966).
92. Gross, 129 S Ct at 2350.
93. See 42 USC § 2000e-2002 (m).
94. See Gross, 129 S Ct at 2349.
95. Gross, 129 S Ct at 2349.
96. See id at 2358-59 (Breyer dissenting). See also Wex S. Malone, Ruminations on Causein-Fact, 9 Stan L Rev 60, 67(1956) (arguing that forcing the plaintiff to pry into the thoughts of the defendant sets up the "impossible" task of "prob[ing] into a purely fanciful and unknowable state of affairs").
97. See Gross, 129 S Ct at 2358-59 (Breyer dissenting) ("Sometimes we speak of determining or discovering motives, but more often we ascribe motives, after an event, to an individual in light of the individual's thoughts and other circumstances present at the time of decision. ").
98. *2 (ED Pa);
99. Hayes v Sebelius, 272 F Supp 2d 90, 111-13 (DDC 2011);
100. Beckford v Giethner, 661 F Supp 2d, 25 n 3 (DDC 2009).
101. See Smith v Xerox Corp, 602 F3d 320, 329-30 (5th Cir 2010).
102. 272 F Supp 2d 90 (DDC 2011).
103. For another recent decision applying Gross and its requirement of but-for causation proved solely by the plaintiff to a Title VII retaliation claim (albeit one with a very sparse analysis of the issue), see Beckford, 661 F Supp 2d at 25 n 3.
104. Hayes, 272 F Supp 2d at 93 (involving a claim against the Secretary of Health and Human Services).
105. Hayes, 272 F Supp 2d at 111-13.
106. Hayes, 272 F Supp 2d at 110.
107. Id, citing Gross, 129 S Ct at 2351-52 ("[I]t is far from clear that the Court would have the same approach were it to consider the question [of Price Waterhouse's burden-shifting framework] today in the first instance.").
108. Hayes, 272 F Supp 2d at 111.
109. Id at 112, quoting Gross, 129 S Ct at 2349.
110. See 42 USC § 2000e-2 (m).
111. Hayes, 272 F Supp 2d at 113.
112. *2.
113. 2011 WL 940237 (ED Pa).
114. *1, quoting Third Circuit Model Civil Jury Instructions § 5.1.7(2010).
115. *1, quoting Third Circuit Model Civil Jury Instructions § 5.1.7(2010).
116. *1
117. quoting Gross, 129 S Ct at 2350-51.
118. 719 F Supp 2d 484 (ED Pa 2010).
119. Pub L No 101-336, 104 Stat 327
120. codified as amended at 42 USC § 12101 et seq.
121. *2
122. citing Warshaw, 719 F Supp 2d at 503.
123. Warshaw, 719 F Supp 2d at 503.
124. *2.
125. Fairley v Andrews, 578 F3d 518, 525-26 (7th Cir 2009).
126. 578 F3d 518 (7th Cir 2009).
127. 591 F3d 957 (7th Cir 2010).
128. ADA § 102 (a)
129. 104 Stat at 331-32. Note, however, that the ADA was amended after Serwatka was decided. See ADA Amendments Act of 2008 § 5 (a) (1), Pub L No 110-325
130. 122 Stat 3553, 3557
131. codified in relevant part at 42 USC § 12112 (a).
132. See Serwatka, 591 F3d at 962.
133. Interestingly, in applying Gross to the ADA, the Seventh Circuit cited its earlier holding in McNutt v Board of Trustees of the University of Illinois, 141 F3d 706, 709 (7th Cir 1998), a decision that held that Price Waterhouse continues to govern Title VII retaliation claims after the 1991 Act. The Serwatka court cited McNutt for the proposition that where Congress changes one statute but not another (such as amending the discrimination section-but not the retaliation section-of Title VII), the amended standard should not apply to claims under the unamended section.
134. See Serwatka, 591 F3d at 962-63 (summarizing McNutt and noting that "McNutt is consistent with the Supreme Court's subsequent decision in Gross"). Yet the Serwatka court seemed to overlook the fact that the ultimate result of McNutt is the application of Price Waterhouse's burden-shifting framework to a Title VII retaliation claim, even though Congress never added a "motivating factor" provision to the retaliation section.
135. See McNutt, 141 F3d at 709.
136. 602 F3d 320 (5th Cir 2010).
137. Smith, 602 F3d at 328.
138. quoting Fairley, 578 F3d at 525-26.
139. See Smith, 602 F3d at 328-29 ("It is not our place, as an inferior court, to renounce Price Waterhouse as no longer relevant to mixed-motive retaliation cases, as that prerogative remains always with the Supreme Court.").
140. Smith, 602 F3d at 330.
141. Smith, 602 F3d at 336 (Jolly dissenting).
142. Nuskey v Hochberg, 70 F Supp 2d 1, 5 (DDC 2010).
143. See Beckham v National Railroad Passenger Corp, 736 F Supp 2d 130, 140-46 (DDC 2010) (analyzing each type of claim separately).
144. 42 USC § 2000e-2002 (m) (emphasis added).
145. See Smith, 602 F3d at 328;
146. McNutt, 141 F3d at 707-08.
147. For earlier examples of similar confusion following the passage of the 1991 Act, see Hall v City of Brawley, 887 F Supp 1333, 1345 (SD Cal 1995) (applying the amended partial remedies framework to a retaliation claim while apparently overlooking the absence of any explicit amendment of the retaliation section of Title VII);
148. Doe v Kohn Nast & Graf, PC, 862 F Supp 1310, 1316 n 2 (ED Pa 1994) (same). On the subject of confusion in the employment law context more generally
149. see Robert Belton, Mixed-Motive Cases in Employment Discrimination Law Revisited: A Brief Updated View of the Swamp, 51 Mercer L Rev 651, 670(2000) (postulating that such confusion is "symptomatic of a larger problem: either the inability, or the refusal, of a significant number of federal judges, including Supreme Court Justices, to recognize the continuing significance that consideration of race and sex, for example, plays in the decisionmaking process of our society").
150. Other arguments in favor of burden shifting for retaliation claims are extraneous or irrelevant. For example, the Fifth Circuit insisted that the ADEA is somehow different from Title VII, without explaining why. See Smith, 602 F3d at 329. The court even quoted Gross for the idea that "we must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. "
151. Id, quoting Gross, 129 S Ct at 2349. Yet, without any analysis, the Fifth Circuit simply stated that, because the claim in Smith was brought under Title VII, Price Waterhouse (and circuit cases applying it) was the only precedent that mattered.
152. See Smith, 602 F3d at 329-30. What the Fifth Circuit overlooked was that the precise reason the Supreme Court distinguished between Title VII and the ADEA was that the discrimination provision of Title VII had been amended to codify burden shifting, whereas the ADEA had not.
153. See Gross, 129 S Ct at 2349. This same state of affairs applies in the Title VII retaliation context. See Part III. B.
154. See Gross, 129 S Ct at 2349 ("This Court has never held that this burden-shifting framework applies to ADEA claims.").
155. For example, the Seventh Circuit's broad admonition that, "unless a statute... provides otherwise, demonstrating but-for causation is part of the plaintiff's burden in all suits under federal law" falls flat if a prior Supreme Court decision established an alternative framework prior to the 1991 Act. Fairley, 578 F3d at 525-26 (emphasis added). If extended to the Title VII context, the validity of the Seventh Circuit's assertion depends on Price Waterhouse originally applying only to discrimination claims-which might be true, but which must be demonstrated rather than assumed. It is the necessary precursor to showing why Gross applies. By contrast, the original scope of Price Waterhouse was properly irrelevant to the outcome of Serwatka because Serwatka involved the ADA, which was not enacted until after Price Waterhouse, in 1990.
156. See Midlantic National Bank v New Jersey Department of Environmental Protection, 474 US 494, 501(1986) ("The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.")
157. citing Edmonds v Compagnie Generale Transatlantique, 443 US 256, 266-67(1979);
158. William N. Eskridge Jr, Interpreting Legislative Inaction, 87 Mich L Rev 67, 94-95(1988).
159. Earl M. Maltz, Rhetoric and Reality in the Theory of Statutory Interpretation, 71 BU L Rev 767, 777(1991).
160. See also John C. Grabow, Congressional Silence and the Search for Legislative Intent: A Venture into "Speculative Unrealities," 64 BU L Rev 737, 741(1984) ("[T]here exists no legal or functional justification for the imputation of any meaning to the necessarily frequent and prolonged silences of Congress.").
161. Cleveland v United States, 329 US 14, 22 n 4(1946) (Rutledge concurring). As Justice Felix Frankfurter once observed, "[W]e walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle."
162. Helvering v Hallock, 309 US 106, 121(1940). Similarly, Justice Thurgood Marshall drew attention to "the realities of the legislative process" when he observed that "it is generally difficult to infer from a failure to act any affirmative conclusions."
163. Goldstein v California, 412 US 546, 577(1973) (Marshall dissenting).
164. See INS v Chadha, 462 US 919, 951(1983) ("[T]he prescription for legislative action in Art. I, §§ 1, 7 represents the Framers' decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.").
165. See also John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum L Rev 673, 707-10(1997) (emphasizing the importance of the bicameralism and presentment requirements); (Pubitemid 127436838)
166. Daniel L. Rotenberg, Congressional Silence in the Supreme Court, 47 U Miami L Rev 375, 376(1992) ("A failure to follow the method results in no law.").
167. Justice Antonin Scalia-himself in the majority in Gross-has argued forcefully against drawing meaning from legislative inaction, explaining that "[i]t is based, to begin with, on the patently false premise that the correctness of statutory construction is to be measured by what the current Congress desires, rather than by what the law as enacted meant." Johnson v Transportation Agency, Santa Clara County, California, 480 US 616, 671(1987) (Scalia dissenting). Moreover, "even accepting the flawed premise that the intent of the current Congress... is determinative, one must ignore rudimentary principles of political science to draw any conclusions regarding that intent from the failure to enact legislation. " Id at 671-72.
168. *2.
169. The Hayes court, like others to have interpreted Gross broadly, evidently ignored the self-limiting language of Gross when it said that Gross "makes clear that Price Waterhouse's interpretation of 'because of' is flatly incorrect" without first showing why the retaliation provision and the ADEA are indistinguishable. Hayes, 762 F Supp 2d at 112.
170. See Gross, 129 S Ct at 2352.
171. Agostini v Felton, 521 US 203, 237(1997)
172. quoting Rodriguez de Quijas v Shearson/American Express, Inc, 490 US 477, 484(1989).
173. See also Illinois Tool Works, Inc v Independent Ink, Inc, 547 US 28, 33(2006) ("[T]he duty of a court of appeals [is] to follow the precedents of the Supreme Court until the Court itself chooses to expressly overrule them.").
174. See Gross, 129 S Ct at 2349.
175. See Stephen M. Feldman, The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making, 30 L & Soc Inquiry 89, 107(2005) ("The justices [] demonstrate their genuine concern for doctrine not only by issuing opinions, but by frequently bargaining and negotiating among themselves over the specific contents of their majority opinions, as if the precise wording of paragraphs and even single sentences made a difference.").
176. See Paul J. Wahlbeck, James F. Spriggs II, and Forrest Maltzman, Marshalling the Court: Bargaining and Accommodation on the United States Supreme Court, 42 Am J Polit Sci 294, 297(1998) (discussing how justices circulate draft opinions and bargain over language, because the final opinions are what "contain legal rules that establish referents for future behavior and thus have an impact beyond the parties in the litigation").
177. Smith, 602 F3d at 329.
178. *2.
179. Hayes, 762 F Supp 2d at 111-12.
180. Id at 112, quoting Gross, 129 S Ct at 2352.
181. Hayes, 762 F Supp 2d at 112
182. quoting Gross, 129 S Ct at 2351-52.
183. The Fifth Circuit merely said that Price Waterhouse remains "our guiding light" since it interpreted "because" in Title VII, whereas Gross involved only the ADEA. Smith, 602 F3d at 329. The Fifth Circuit made no actual argument regarding why Price Waterhouse applies to retaliation claims in the first place; rather, it implicitly assumed that a decision about one part of Title VII would naturally apply to the entire statute. In dissent, Judge Jolly made the opposite assumption-evidenced by his suggestion that burden shifting applied only to retaliation claims because the Fifth Circuit had extended Price Waterhouse to the retaliation context-and reached the opposite result.
184. See Gross, 129 S Ct at 2349.
185. See Hayes, 762 F Supp 2d at 112.
186. *2.
187. See also Beckford v Giethner, 661 F Supp 2d 17, 25 n 3 (DDC 2009) (noting, in a cursory fashion, that the reasoning of Gross "appears applicable to the anti-retaliation provision of Title VII" because the ADEA and the retaliation section both use the word "because").
188. See, for example, Serwatka, 591 F3d at 961.
189. The 1991 Act allows the plaintiff to shift the burden of proof to the defendant by showing that a protected characteristic was a "motivating factor" in the employer's decision. See 42 USC § 2000e-2002 (m). Similarly, Price Waterhouse allows the plaintiff to shift the burden of proof by showing that a protected characteristic was a "substantial factor" in the employer's decision.
190. See Price Waterhouse, 490 US at 241 (plurality); id at 259-60 (White concurring); id at 276 (O'Connor concurring). The major difference is that Price Waterhouse gives the employer a complete defense if it can disprove that consideration of a protected characteristic was a but-for cause of its decision, while the 1991 Act still provides the employee with limited remedies (most importantly, fees and costs) even where but-for causation is disproved.
191. See Price Waterhouse, 490 US at 241 (plurality).
192. See also 42 USC § 2000e-2005 (g) (2) (B).
193. See Hayes, 762 F Supp 2d at 112-13.
194. Price Waterhouse, 490 US at 232 (plurality) (emphasis added). See also id at 263 (O'Connor concurring) ("The question for decision in this case is what allocation of the burden of persuasion on the issue of causation best conforms with the intent of Congress and the purposes behind Title VII.").
195. Price Waterhouse, 490 US at 237 (plurality) (emphasis added).
196. Whether and when legislative history is a useful guide to statutory interpretation has been hotly debated. See, for example, Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S Cal L Rev 845, 848-61(1992) (listing examples of the beneficial uses of legislative history, which include avoiding absurd results, correcting drafting errors, determining specialized meanings, and identifying the "reasonable purpose" of a statute);
197. Frank H. Easterbrook, Statutes' Domains, 50 U Chi L Rev 533, 539(1983) (arguing that turning to legislative history to "fill in blanks" is "a sort of creation," which is illegitimate "without some warrant-other than the existence of the blank").
198. See Price Waterhouse, 490 US at 239 n 4, 243-44 (plurality); id at 262-63 (O'Connor concurring).
199. See Sandra Tafuri, Title VII's Antiretaliation Provision: Are Employers Protected after the Employment Relationship Has Ended?, 71 NYU L Rev 797, 808(1996) ("Only scant legislative history exists on section 704 (a) [the retaliation provision].");
200. Edward C. Walterscheid, A Question of Retaliation: Opposition Conduct as Protected Expression under Title VII of the Civil Rights Act of 1964, 29 BC L Rev 391, 393(1988) (observing the "almost total absence of any legislative history" for Title VII's retaliation provision, and noting that the committee reports that exist "simply repeat certain language of Section 704 (a) without any explanation of its meaning").
201. See also Green v McDonnell Douglas Corp, 463 F2d 337, 341 (8th Cir 1972) (noting that the legislative history of Title VII provides "no guidance as to the scope of protection afforded by [the retaliation provision]").
202. See Price Waterhouse, 490 US at 265 (O'Connor concurring)
203. quoting 110 Cong Rec S 7218 (Apr. 8, 1964) (Sen Clark).
204. See Price Waterhouse, 490 US at 265 (O'Connor concurring)
205. quoting 110 Cong Rec S 13088 (June 9, 1964) (Sen Humphrey) (emphasis added). There are-as is usually the case among the volumes of legislative history-some statements that arguably contradict these sentiments.
206. See Price Waterhouse, 490 US at 281 (Kennedy dissenting) ("To discriminate is to make a distinction, to make a difference in treatment or favor.")
207. quoting 110 Cong Rec at S 7213 (cited in note 168) (Joint Memorandum by Sen Clark and Sen Case). But, importantly, there are no inklings in the legislative history that the discrimination and retaliation provisions should be treated differently. See note 167.
208. See Price Waterhouse, 490 US at 241 n 7
209. citing 110 Cong Rec S 2728 (Feb. 10, 1964) (Sen Dowdy);
210. 110 Cong Rec S 13837 (June 15, 1964) (Sen Case).
211. See Mark S. Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum L Rev 292, 297(1982)
212. quoting 110 Cong Rec at S 13837 (cited in note 170) (Sen Case).
213. Jackson v Birmingham Board of Education, 544 US 167, 173-74(2005).
214. Gomez-Perez v Potter, 553 US 474, 481(2008).
215. Burlington Northern & Santa Fe Railroad Co v White, 548 US 53, 63(2006) (citation omitted).
216. See Gross, 129 S Ct at 2358-59 (Breyer dissenting) ("All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer's decision. ");
217. Malone, 9 Stan L Rev at 67 (cited in note 62).
218. See Price Waterhouse, 490 US at 250 (plurality) ("It is fair that [the employer] bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing.").
219. See, for example, Commissioner of Internal Revenue v Keystone Consolidated Industries, Inc, 508 US 152, 159(1993) ("[I]dentical words used in different parts of the same act are intended to have the same meaning.")
220. quoting Atlantic Cleaners & Dyers, Inc v United States, 286 US 427, 433(1932).
221. See Womack v Munson, 619 F2d 1292, 1296 (8th Cir 1980).
222. Gross, 129 S Ct at 2351 (emphasis added).
223. See Serwatka, 591 F3d at 959 (emphasis added).
224. Pennington v City of Huntsville, 261 F3d 1262, 1269 (11th Cir 2001).
225. Speedy v Rexnord Corp, 243 F3d 397, 402 (7th Cir 2001).
226. See Gross, 129 S Ct at 2352 (declining to "extend[]" Price Waterhouse to the ADEA).