Undermining congressional overrides: The hydra problem in statutory interpretation

Texas Law Review

Volumn 90, Issue 4, 2012, Pages 859-942

  Widiss, Deborah A ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 84859410505     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (437)

1. 129 S. Ct. 2343 (2009).
2. 490 U.S. 228 (1989).
3. See Gross, 129 S. Ct. at 2349 (stating that the Court had "never" held that the "burdenshifting framework" endorsed by Congress's post-Price Waterhouse amendments to Title VII was applicable to ADEA claims and holding that "we decline to do so now").
4. See Gross, 129 S. Ct. at 2349 (stating that the Court had "never" held that the "burdenshifting framework" endorsed by Congress's post-Price Waterhouse amendments to Title VII was applicable to ADEA claims and holding that "we decline to do so now").
5. See Gross, 129 S. Ct. at 2349 (stating that the Court had "never" held that the "burdenshifting framework" endorsed by Congress's post-Price Waterhouse amendments to Title VII was applicable to ADEA claims and holding that "we decline to do so now").
6. See Gross, 129 S. Ct. at 2349 (stating that the Court had "never" held that the "burdenshifting framework" endorsed by Congress's post-Price Waterhouse amendments to Title VII was applicable to ADEA claims and holding that "we decline to do so now").
7. Gross interpreted the ADEA's prohibition on discrimination against an individual "because of such individual's age" to require a plaintiff to prove that age was the but-for cause of an adverse employment action, even if that action was allegedly based on a mix of legitimate and illegitimate factors. 29 U.S.C. § 623(a) (2006); Gross, 129 S. Ct. at 2350-51.
8. See, e.g., Michael Foreman, Gross v. FBL Financial Services-Oh So Gross!, 40 U. Mem. L. Rev. 681, 691-92 (2010) (arguing that plaintiffs lack access to relevant evidence needed to prove but-for causation in mixed-motive cases).
9. Melissa Hart, Procedural Extremism: The Supreme Court's 2008-2009 Labor and Employment Cases, 13 Emp. Rts. & Emp. Pol'y J. 253, 270 (2009).
10. See Gross, 129 S. Ct. at 2354-57 (Stevens, J., dissenting) (arguing that Price Waterhouse should govern the ADEA) at 2358-59 (Breyer, J., dissenting) (arguing that proving but-for causation is very difficult for plaintiffs).
11. In Price Waterhouse, the plurality and concurring opinions interpreted Title VII's prohibition on discrimination "because of" an individual's sex to establish liability if a plaintiff proved sex was a "motivating" or "substantial" factor in a decision based on a mix of legitimate and illegitimate factors, unless an employer could prove that it would have taken the same action without considering sex. Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 250 (1989) (plurality opinion); at 259-61 (White, J., concurring); at 276, 278 (O'Connor, J., concurring). Justice O'Connor interpreted Title VII to permit shifting the burden to the defendant only when a plaintiff had "direct evidence" of discrimination. at 276. Shortly after Price Waterhouse was decided, Congress amended Title VII to codify the motivating-factor standard and to replace the affirmative defense articulated in Price Waterhouse with a limitation on remedies. Civil Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat. 1071, 1075-76 (codified as amended at 42 U.S.C. §§ 2000e-2(m), 2000e5-(g)(B) (2006).
12. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
13. Robert Belton, Mixed-Motive Cases in Employment Discrimination Law Revisited: A Brief Updated View of the Swamp, 51 Mercer L. Rev. 651 (2000)
14. Howard Eglit, The Age Discrimination in Employment Act, Title VII, and the Civil Rights Act of 1991: Three Acts and a Dog that Didn't Bark, 39 Wayne L. Rev. 1093 (1993)
15. Jamie Darin Prenkert, Bizarro Statutory Stare Decisis, 28 Berkeley J. Emp. & Lab. L. 217 (2007).
16. Jamie Darin Prenkert, Bizarro Statutory Stare Decisis, 28 Berkeley J. Emp. & Lab. L. 217 (2007).
17. See Gross, 129 S. Ct. at 2349 ("We cannot ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA. ").
18. Jamie Darin Prenkert, Bizarro Statutory Stare Decisis, 28 Berkeley J. Emp. & Lab. L. 217 (2007).
19. Jamie Darin Prenkert, Bizarro Statutory Stare Decisis, 28 Berkeley J. Emp. & Lab. L. 217 (2007).
20. Jamie Darin Prenkert, Bizarro Statutory Stare Decisis, 28 Berkeley J. Emp. & Lab. L. 217 (2007).
21. See Gross, 129 S. Ct. at 2346, 2352, 2358 (indicating that the majority decision was authored by Justice Thomas and joined by Chief Justice Roberts and Justices Alito, Kennedy, and Scalia, while Justices Stevens, Breyer, Ginsburg, and Souter dissented); see also Jeffrey Rosen, Supreme Court Inc., N.Y. Times Mag., Mar. 16, 2008, available at http://www.nytimes.com/2008/ 03/16/magazine/16supreme-t.html (documenting the rise of "pro-business" decisions under the Roberts Court).
22. See Gross, 129 S. Ct. at 2346, 2352, 2358 (indicating that the majority decision was authored by Justice Thomas and joined by Chief Justice Roberts and Justices Alito, Kennedy, and Scalia, while Justices Stevens, Breyer, Ginsburg, and Souter dissented); see also Jeffrey Rosen, Supreme Court Inc., N.Y. Times Mag., Mar. 16, 2008, available at http://www.nytimes.com/2008/ 03/16/magazine/16supreme-t.html (documenting the rise of "pro-business" decisions under the Roberts Court).
23. See Gross, 129 S. Ct. at 2346, 2352, 2358 (indicating that the majority decision was authored by Justice Thomas and joined by Chief Justice Roberts and Justices Alito, Kennedy, and Scalia, while Justices Stevens, Breyer, Ginsburg, and Souter dissented); see also Jeffrey Rosen, Supreme Court Inc., N.Y. Times Mag., Mar. 16, 2008, available at http://www.nytimes.com/2008/ 03/16/magazine/16supreme-t.html (documenting the rise of "pro-business" decisions under the Roberts Court).
24. Protecting Older Workers Against Discrimination Act, S. 1756, 111th Cong. (1st Sess. 2009); Protecting Older Workers Against Discrimination Act, H.R. 3721, 111th Cong. (1st Sess. 2009). The two bills were substantively identical.
25. Numerous state legislatures have enacted statutes that seek to govern how courts interpret statutes, some with greater success than others. See generally Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo. L.J. 341 (2010) (cataloguing rules of interpretation enacted by state legislatures and discussing the extent to which they control judicial interpretations). Commentators disagree about the constitutionality of comparable action by Congress.
26. William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 Mich. L. Rev. 67, 90-108 (1988) (discussing concerns with inferring acquiescence from inaction, including the possibility that Congress does not know about the relevant decision, has higher priorities than responding to it, or cannot agree on an appropriate response).
27. William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 Mich. L. Rev. 67, 90-108 (1988) (discussing concerns with inferring acquiescence from inaction, including the possibility that Congress does not know about the relevant decision, has higher priorities than responding to it, or cannot agree on an appropriate response).
28. Compare, e.g., Edward H. Levi, An Introduction to Legal Reasoning 23 (1949) ("Therefore it seems better to say that once a decisive interpretation of legislative intent has been made, and in that sense a direction has been fixed within the gap of ambiguity, the court should take that direction as given. ").
29. For general discussions of the system of precedent, see, for example, Precedent in Law (Laurence Goldstein ed., 1987); Eric Maltz, The Nature of Precedent, 66 N.C. L. Rev. 367 (1988).
30. For general discussions of the system of precedent, see, for example, Precedent in Law (Laurence Goldstein ed., 1987); Eric Maltz, The Nature of Precedent, 66 N.C. L. Rev. 367 (1988).
31. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).
32. See, e.g., Bozman v. Bozman, 830 A.2d 450, 450, 470 (Md. 2003) (holding that abrogation of the common law rule of spousal immunity was warranted because it was a "vestige of the past [and] no longer suitable to our people" (alteration in original) (internal quotation marks omitted).
33. See, e.g., William N. Eskridge, Jr., Overruling Statutory Precedents, 76 Geo. L.J. 1361, 1362 (1988) ("The Court applies a relaxed, or weaker, form of that presumption when it reconsiders its constitutional precedents, because the difficulty of amending the Constitution makes the Court the only effective resort for changing obsolete constitutional doctrine. ").
34. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1098 (2008) ("[O]ur study of the 1014 agency-interpretation cases from Chevron to Hamdan reveals that the Court's deference practice functions along a continuum, ranging from an anti-deference regime reflected in the rule of lenity to the super-strong deference the Court sometimes announces in cases related to foreign affairs. ").
35. See, e.g., Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. Rev. 1156, 1161-62 (2005) (discussing the hierarchical application of precedent).
36. See, e.g., Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. Rev. 1156, 1161-62 (2005) (discussing the hierarchical application of precedent).
37. For an interesting exploration of how "common law" statutes differ from other statutes (if at all), see Margaret H. Lemos, Interpretive Methodology and Delegations to Courts: Are "Common-Law Statutes" Different?, in Intellectual Property and the Common Law (Shyamkrishna Balganesh ed., forthcoming 2012) (on file with author).
38. The Court announced this standard in two decisions handed down on the same day that include the same precise language. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) ("An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee... [unless an employer can establish] (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. "); Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 765 (1998) (repeating the test in identical language).
39. Courts frequently disagree about the correct interpretation of aspects of this judicially created standard. Compare, e.g., Monteagudo v. Asociación de Empleados del Estado Libre Asociado de P.R., 554 F.3d 164, 171-72 (1st Cir. 2009) (holding that it was not "unreasonable" as a matter of law for an employee to fail to file a sexual harassment complaint when the manager who handled complaints was a close friend of the alleged harasser), with Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 268 (4th Cir. 2001) (holding in a similar situation that it was unreasonable for an employee to fail to report harassment).
40. See Ellerth, 524 U.S. at 755 (arguing that the Court's newly developed discrimination rule was not purely discretionary "common law" but rather "statutory interpretation pursuant to congressional direction").
41. See Peter L. Strauss, The Common Law and Statutes, 70 U. Colo. L. Rev. 225, 234 (1999) (asserting that judges in civilian jurisdictions are "just interpreters" whose decisions are only final for a particular case and are not authoritative in other cases, even similar ones). For case studies on the use of precedent in several civil code countries, see generally Interpreting Precedents (D. Neil MacCormick & Robert S. Summers eds., 1997). The editors of this volume suggest that increasingly in civil code countries, prior judicial interpretations of statutory language can exert influence, even if they are not technically binding as precedent. See D. Neil MacCormick & Robert S. Summers, Further General Reflections and Conclusions, in Interpreting Precedents, (suggesting that though significant differences remain, the treatment of precedent in civil and common law countries has converged in the modern era so that it is of increasing importance in civil law jurisdictions).
42. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents, 103, 107 (stating that in France, "[t]he only legitimate source of law is 'the law', which is equated with statutory law").
43. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (calling stare decisis an "indisputable... self-governing principle within the Judicial Branch" that carries "special force in the area of statutory interpretation").
44. This debate is often characterized as between adherents to an "attitudinal model, " who argue that judges are heavily influenced by their ideological preferences, and adherents to a "legal model, " who argue that judges are in fact constrained by precedent, statutory language, and congressional intent. See Kirk A. Randozzo et al., Checking the Federal Courts: The Impact of Congressional Statutes on Judicial Behavior, 68 J. Pol. 1006, 1008 (2006) (describing this debate and collecting studies that provide evidence for each theory). There is empirical work on each side of the debate. For a study substantiating the attitudinal model by showing that, at least as far as the Supreme Court is concerned, ideological preferences play a significant role in decision making, see Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (2002). For a study empirically testing the effect of regime-changing Supreme Court decisions and finding that the Justices' voting is at least somewhat constrained by precedent.
45. Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 Am. Pol. Sci. Rev. 305 (2002).
46. Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 Am. Pol. Sci. Rev. 305 (2002).
47. See also Madeline Fleisher, Judicial Decision Making Under the Microscope: Moving Beyond Politics Versus Precedent, 60 Rutgers L. Rev. 919, 920-21 nn.3-5 (2008) (collecting and describing studies that seek to document the constraining effect of precedent relative to ideology).
48. See Patterson, 491 U.S. at 172-73 (noting that although prior statutory interpretations are given greater deference than constitutional ones, the Court will overrule a prior statutory precedent that has proven unworkable in practice).
49. See, e.g., Flood v. Kuhn, 407 U.S. 258, 280-84 (1972) (adhering to precedents excluding professional baseball from antitrust regulation, despite widespread criticism of the prior decisions, on the ground that Congress had signaled agreement with the Court's interpretation by failing to enact legislation overriding those decisions)
50. Cf. Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law 191-92 (1988) (arguing that, at least as to constitutional principles, judges can "assemble diverse precedents into whatever pattern" they choose). Although lower courts also enjoy some flexibility regarding how broadly or narrowly they interpret Supreme Court precedent, studies suggest the expected preference of the contemporary Supreme Court plays a significant role in lower courts' decision making. See, e.g., Sara C. Benesh & Malia Reddick, Overruled: An Event History Analysis of Lower Court Reaction to Supreme Court Alteration of Precedent, 64 J. Pol. 534, 546-47 (2002) (finding that the ideology of the contemporary Supreme Court is a more important factor than the ideology of the circuit court panel in determining whether that panel will comply with new Supreme Court precedent overruling prior Supreme Court precedent).
51. See Harold J. Spaeth & Jeffrey A. Segal, Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court 38 (1999) (describing how certain Justices sometimes follow a pattern of "strong[ly] preferential" voting, registering their continued rejection of a precedent by authoring a dissent in each successor case).
52. See Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 Am. J. Pol. Sci. 971, 972-73 (2009) (collecting studies demonstrating that "courts have preferences for institutional legitimacy").
53. See Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 Am. J. Pol. Sci. 971, 972-73 (2009) (collecting studies demonstrating that "courts have preferences for institutional legitimacy").
54. Black's Law Dictionary 862 (9th ed. 2009).
55. See William N. Eskridge, Jr. et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 1066 (4th ed. 2007) (introducing the "in pari materia" rule as one of three canons of statutory construction under which an interpreter of a statute may look to other statutes for interpretive guidance); Caleb Nelson, Statutory Interpretation 486-89 (2011) (discussing the canon).
56. See William N. Eskridge, Jr. et al., Cases and Materials on Legislation: Statutes and the Creation of Public Policy 1066 (4th ed. 2007) (introducing the "in pari materia" rule as one of three canons of statutory construction under which an interpreter of a statute may look to other statutes for interpretive guidance); Caleb Nelson, Statutory Interpretation 486-89 (2011) (discussing the canon).
57. See, e.g., Lorillard v. Pons, 434 U.S. 575, 581 (1978) (stating, in the context of the thenrecently enacted ADEA, that "where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute").
58. See, e.g., Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979) (citing the "common purpose" of the ADEA and Title VII as partial justification for interpreting the statutes consistently).
59. See, e.g., Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979) (citing the "common purpose" of the ADEA and Title VII as partial justification for interpreting the statutes consistently).
60. Black's Law Dictionary 853 (9th ed. 2009).
61. Lorillard, 434 U.S. at 584-85.
62. See Lehman v. Nakshian, 453 U.S. 156, 166-67 (1981) (stating that in addressing age discrimination in federal employment, "Congress deliberately prescribed a distinct statutory scheme applicable only to the federal sector, and one based not on the FLSA but... on Title VII" (footnote omitted).
63. See Robert A. Katzmann, Courts and Congress 72-76 (1997) (describing a study that found that congressional staffers were mostly unaware of how circuit courts were interpreting statutes). But accompanying text (discussing studies showing that many Supreme Court and circuit court decisions are discussed in some manner in Congress).
64. See, e.g., Smith v. City of Jackson, 544 U.S. 228, 260 (2005) (O'Connor, J., concurring) (criticizing the plurality opinion for applying a 1971 interpretation of Title VII to the ADEA, enacted in 1967).
65. See, e.g., Smith v. City of Jackson, 544 U.S. 228, 260 (2005) (O'Connor, J., concurring) (criticizing the plurality opinion for applying a 1971 interpretation of Title VII to the ADEA, enacted in 1967).
66. See, e.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 522-25 (1994) (interpreting language in the Copyright Act regarding attorneys' fees differently from almost identical language in civil rights statutes in order to further distinct purposes). Of course, many would argue that these statutes are not in pari materia at all.
67. See, e.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 522-25 (1994) (interpreting language in the Copyright Act regarding attorneys' fees differently from almost identical language in civil rights statutes in order to further distinct purposes). Of course, many would argue that these statutes are not in pari materia at all.
68. See, e.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 522-25 (1994) (interpreting language in the Copyright Act regarding attorneys' fees differently from almost identical language in civil rights statutes in order to further distinct purposes). Of course, many would argue that these statutes are not in pari materia at all.
69. See, e.g., W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 88-92 (1991) (arguing that the existence of several statutes explicitly permitting the recovery of experts' and attorneys' fees required interpreting a statute that only explicitly referenced "attorney's fees" to preclude recovery of experts' fees).
70. For example, Congress recently enacted the Genetic Information Nondiscrimination Act of 2008 (GINA), Pub. L. No. 110-233, 122 Stat. 881 (codified as amended in scattered sections of 42 U.S.C.). Although the basic structure of GINA's substantive employment discrimination provisions borrows from Title VII, GINA explicitly precludes interpreting that language to permit "disparate impact" causes of action and authorizes the creation of a commission to study whether disparate impact claims should be permitted in the future.
71. Field v. Mans, 516 U.S. 59, 75 (1995) (emphasis added).
72. Field v. Mans, 516 U.S. 59, 75 (1995) (emphasis added).
73. see also William W. Buzbee, The One-Congress Fiction in Statutory Interpretation, 149 U. Pa. L. Rev. 171, 221 (2000) (describing Justice Scalia's assertions that courts should interpret statutes so as to "ensure some coherence across the whole body of law"); Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court's First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221, 225-26 (2010) (reporting an empirical study of recent cases finding a theoretical divide between Justices who prioritize coherence across the legal landscape and those that aim for best effectuating the policy embodied in a particular statute).
74. Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court's First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221, 225-26 (2010) (reporting an empirical study of recent cases finding a theoretical divide between Justices who prioritize coherence across the legal landscape and those that aim for best effectuating the policy embodied in a particular statute).
75. Friedrich v. City of Chicago, 888 F.2d 511, 516 (7th Cir. 1989).
76. Friedrich v. City of Chicago, 888 F.2d 511, 516 (7th Cir. 1989).
77. Friedrich v. City of Chicago, 888 F.2d 511, 516 (7th Cir. 1989).
78. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009) (citing Bridge v. Phoenix Bond & Indem. Co., 128 S. Ct. 2131 (2008), and Safeco Ins. Co. of Am. v. Burr, 127 S. Ct. 2201 (2007), cases addressing RICO and FCRA, respectively).
79. See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983) (quoting Judge Harold Leventhal as observing that citing legislative history is like "looking over a crowd and picking out your friends").
80. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
81. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
82. Professor Richard Paschal. Richard A. Paschal, The Continuing Colloquy: Congress and the Finality of the Supreme Court, 8 J.L. & Pol. 143, 143 (1991).
83. See, e.g., Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. Econ. & Org. 263, 265 (1990) (arguing that "the behavior of the Court can be understood as that of a selfinterested, politically motivated actor" but that the Court is constrained by "[t]he ability of other political actors to take actions to reverse [it]").
84. See, e.g., Mario Bergara et al., Modeling Supreme Court Strategic Decision Making: The Congressional Constraint, 28 Legis. Stud. Q. 247, 260-63 (2003) (concluding that both ideology and politics seem to affect Supreme Court decision making and asserting that "the conclusion that the Court thinks strategically cannot be rejected").
85. See Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 Am. J. Pol. Sci. 971, 972-73 (2009) (collecting studies demonstrating that "courts have preferences for institutional legitimacy").
86. See Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 Am. J. Pol. Sci. 971, 972-73 (2009) (collecting studies demonstrating that "courts have preferences for institutional legitimacy").
87. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
88. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 335-36, 338 tbl.1 (1991) (reporting that from 1975 to 1990, each Congress overrode an average of twelve Supreme Court decisions and an average of between twenty-three and twenty-four lower court decisions).
89. See, e.g., Lori Hausegger & Lawrence Baum, Behind the Scenes: The Supreme Court and Congress in Statutory Interpretation, in Great Theatre: The American Congress in the 1990s, at 224, 228 (Herbert F. Weisberg & Samuel C. Patterson eds., 1998) (finding that Congress overrode at least 5.6% of the statutory Supreme Court decisions issued in the 1978-1989 terms); see also Jeb Barnes, Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations 197-209 (2004) (listing overrides).
90. See, e.g., Lori Hausegger & Lawrence Baum, Behind the Scenes: The Supreme Court and Congress in Statutory Interpretation, in Great Theatre: The American Congress in the 1990s, at 224, 228 (Herbert F. Weisberg & Samuel C. Patterson eds., 1998) (finding that Congress overrode at least 5.6% of the statutory Supreme Court decisions issued in the 1978-1989 terms); see also Jeb Barnes, Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations 197-209 (2004) (listing overrides).
91. James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 Duke L.J. 1231, 1235 (2009) (finding significant variation between the statutory interpretation techniques used in tax cases and those used in employment cases).
92. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
93. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
94. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
95. See, e.g., Ingri Parin D'Aulaire & Edgar Parin D'Aulaire, D'Aulaire's Book of Greek Myths 134 (1962).
96. See, e.g., Ingri Parin D'Aulaire & Edgar Parin D'Aulaire, D'Aulaire's Book of Greek Myths 134 (1962).
97. See, e.g., Ingri Parin D'Aulaire & Edgar Parin D'Aulaire, D'Aulaire's Book of Greek Myths 134 (1962).
98. See, e.g., Ingri Parin D'Aulaire & Edgar Parin D'Aulaire, D'Aulaire's Book of Greek Myths 134 (1962).
99. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
100. See, e.g., Mullin v. Raytheon Co., 164 F.3d 696, 701, 703-04 (1st Cir. 1999) (collecting cases demonstrating the split and discussing the significance of the 1991 amendments).
101. Compare Casteel v. Exec. Bd. of Local 703, 272 F.3d 463, 467 (7th Cir. 2001) (holding that despite Congress's override of Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989), Lorance's reasoning remained persuasive when interpreting the ADEA), and Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1050 n.1 (7th Cir. 1997) (applying Lorance in interpreting the ADA), with Casillas v. Fed. Express Corp., 140 F. Supp. 2d 875, 884-85 (W.D. Tenn. 2001) (finding that Lorance did not apply "because the ADEA provisions were generally derived from Title VII, [and] when Congress clarified what it originally meant in § 2000e-2(h), this clarification also applied to its ADEA counterpart, 29 U.S.C. § 623(f)(2)").
102. See EEOC v. Arabian Am. Oil Co. (Aramco), 499 U.S. 244, 258-59 (1991) (holding that Title VII did not apply extraterritorially in part because it lacked language added to override judicial decisions interpreting the ADEA).
103. For the key steps in the conversation, see Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 269-71 (1975) (interpreting the absence of explicit fee-shifting language in an environmental statute to preclude awards of attorneys' fees), Civil Rights Attorney's Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641 (codified as amended at 42 U.S.C. § 1988 (2006) (authorizing awards of attorneys' fees in several civil rights statutes), Smith v. Robinson, 468 U.S. 992, 1012-21 (1984) (holding that the Education of the Handicapped Act, which was not amended by the Civil Rights Attorney's Fees Awards Act of 1976, did not authorize an award of fees and precluding companion claims under statutes that did permit fees), Handicapped Children's Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (explicitly authorizing attorneys' fees under the Education of the Handicapped Act), W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102 (1991) (interpreting § 1988 to preclude shifting of experts' fees as part of attorneys' fees); and Civil Rights Act of 1991, Pub. L. No. 102-166, § 113, 105 Stat. 1071, 1079 (explicitly authorizing experts' fees for cases brought pursuant to Title VII and the Americans with Disabilities Act, as incorporated by reference through the amendment of 42 U.S.C. § 1988).
104. The actual significance of the difference between the causation standard applied in Title VII and the standard now applied in ADEA cases can be difficult to measure, but at least one simulated jury study found it influenced case outcomes. See David Sherwyn & 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, 903 (2010) ("Findings from our study suggest that while the outcomes (involving employer liability) are comparable, plaintiffs in cases with a motivating factor jury instruction were significantly more likely to receive litigation costs and attorney fees than plaintiffs in cases with the pretext jury instruction. ").
105. As discussed more fully below, the Civil Rights Act of 1991 overrode numerous Supreme Court decisions. See infra notes 201-12 and accompanying text. More recent statutory overrides of employment discrimination decisions include, for example, the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (codified as amended at 29 U.S.C. §§ 626, 794a (Supp. III 2010) and 42 U.S.C. §§ 2000a, e-5 (Supp. III 2010) (overriding Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), and the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified as amended at 29 U.S.C. § 705 (Supp. III 2010) and in scattered sections of 42 U.S.C.) (overriding Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). Many of the Supreme Court decisions that these acts overrode were 5-4 decisions. E.g., Ledbetter, 550 U.S. at 620; see 136 Cong. Rec. 1657 (1990) (statement of Sen. Metzenbaum) (criticizing a series of 5-4 decisions from the 1988 term as "revers[ing] longstanding precedents" and "den[ying] protection to the victims of employment discrimination, " and describing the then-proposed bill that became the Civil Rights Act of 1991 as "a direct response to those decisions").
106. As discussed more fully below, the Civil Rights Act of 1991 overrode numerous Supreme Court decisions. See infra notes 201-12 and accompanying text. More recent statutory overrides of employment discrimination decisions include, for example, the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (codified as amended at 29 U.S.C. §§ 626, 794a (Supp. III 2010) and 42 U.S.C. §§ 2000a, e-5 (Supp. III 2010) (overriding Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), and the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified as amended at 29 U.S.C. § 705 (Supp. III 2010) and in scattered sections of 42 U.S.C.) (overriding Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). Many of the Supreme Court decisions that these acts overrode were 5-4 decisions. E.g., Ledbetter, 550 U.S. at 620; see 136 Cong. Rec. 1657 (1990) (statement of Sen. Metzenbaum) (criticizing a series of 5-4 decisions from the 1988 term as "revers[ing] longstanding precedents" and "den[ying] protection to the victims of employment discrimination, " and describing the then-proposed bill that became the Civil Rights Act of 1991 as "a direct response to those decisions").
107. As discussed more fully below, the Civil Rights Act of 1991 overrode numerous Supreme Court decisions. See infra notes 201-12 and accompanying text. More recent statutory overrides of employment discrimination decisions include, for example, the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (codified as amended at 29 U.S.C. §§ 626, 794a (Supp. III 2010) and 42 U.S.C. §§ 2000a, e-5 (Supp. III 2010) (overriding Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), and the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (codified as amended at 29 U.S.C. § 705 (Supp. III 2010) and in scattered sections of 42 U.S.C.) (overriding Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). Many of the Supreme Court decisions that these acts overrode were 5-4 decisions. E.g., Ledbetter, 550 U.S. at 620; see 136 Cong. Rec. 1657 (1990) (statement of Sen. Metzenbaum) (criticizing a series of 5-4 decisions from the 1988 term as "revers[ing] longstanding precedents" and "den[ying] protection to the victims of employment discrimination, " and describing the then-proposed bill that became the Civil Rights Act of 1991 as "a direct response to those decisions").
108. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) (setting forth a burden-shifting evidentiary framework to determine whether a challenged determination was because of race or because of an employee's alleged unlawful conduct).
109. This standard evolved in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-11 (1993); and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000). In Reeves, the Court assumed, without deciding, that this burden-shifting structure applied to the ADEA. See Reeves, 530 U.S. at 142 ("This Court has not squarely addressed whether the McDonnell Douglas framework... also applies to ADEA actions. Because the parties do not dispute the issue, we shall assume, arguendo, that the McDonnell Douglas framework is fully applicable here. "). In Gross, the Court once again mentioned that it had not yet squarely decided this question. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349 n.2 ("[T]he Court has not definitively decided whether the evidentiary framework of McDonnell Douglas... utilized in Title VII cases is appropriate in the ADEA context. " (citation omitted).
110. See, e.g., Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 916 (3d Cir. 1983) (interpreting Title VII to require a showing that race was the determining factor or but-for cause of the adverse action rather than merely a substantial or motivating factor in that action); (Adams, J., dissenting) (arguing that the but-for standard would not adequately protect plaintiffs when race is one factor, but not the only factor, in an employment decision); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir. 1979) (considering a mixed-motive situation and holding that the jury should have been instructed that age must be proven by a preponderance of the evidence to be the determining or the but-for factor in the plaintiff's discharge).
111. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
112. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
113. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
114. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
115. 42 U.S.C. § 2000e-2(a) (2006).
116. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
117. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
118. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
119. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
120. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
121. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
122. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
123. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
124. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
125. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
126. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
127. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
128. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
129. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
130. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
131. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
132. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
133. Price Waterhouse v. Hopkins, 490 U.S. 228, 231 (1989) (plurality opinion).
134. See, e.g., Erickson v. Farmland Indus., Inc., 271 F.3d 718, 724 (8th Cir. 2001) (applying the "direct evidence" and "substantial factor" standards from what it called Justice O'Connor's "controlling concurrence"); see also Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. " (internal quotations omitted).
135. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2357 (2009) (Stevens, J., dissenting); see Brief for Petitioner at 52-55, Gross, 129 S. Ct. 2343 (No. 08-441), 2009 WL 208116 (arguing that because Justice White agreed with the plurality in endorsing a motivating-factor standard without a direct-evidence requirement, that standard should control).
136. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C.).
137. Civil Rights Act of 1964, Pub. L. No. 88-352, § 703(a)(1), 78 Stat. 214, 255 (codified as amended at 42 U.S.C. § 2000e-2(a)(1) (2006).
138. Civil Rights Act of 1991 § 107(a) (codified as amended at 42 U.S.C. § 2000e-2(m).
139. Civil Rights Act of 1991 § 107(b) (codified as amended at 42 U.S.C. § 2000e-5(g).
140. H.R. Rep. No. 102-40, pt. 1, at 47 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 585.
141. H.R. Rep. No. 102-40, pt. 1, at 47 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 585.
142. See H.R. Rep. No. 102-40, pt. 2, at 17 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 710 ("Price Waterhouse... threaten[ed] to undermine Title VII's twin objectives of deterring employers from discriminatory conduct and redressing the injuries suffered by victims of discrimination. ").
143. See H.R. Rep. No. 102-40, pt. 2, at 17 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 710 ("Price Waterhouse... threaten[ed] to undermine Title VII's twin objectives of deterring employers from discriminatory conduct and redressing the injuries suffered by victims of discrimination. ").
144. See H.R. Rep. No. 102-40, pt. 2, at 17 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 710 ("Price Waterhouse... threaten[ed] to undermine Title VII's twin objectives of deterring employers from discriminatory conduct and redressing the injuries suffered by victims of discrimination. ").
145. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 95 (2003) (collecting cases demonstrating the circuit split on whether direct evidence was required); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 582-83 (1st Cir. 1999) (discussing different approaches taken in the circuit split on what counted as direct evidence).
146. 539 U.S. 90 (2003).
147. 539 U.S. 90 (2003).
148. 539 U.S. 90 (2003).
149. 539 U.S. 90 (2003).
150. See, e.g., Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 361 (8th Cir. 2008) (describing the quandary regarding the ADEA), vacated, 129 S. Ct. 2343 (2009); Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000) (describing the quandary regarding ADA claims); Woodson v. Scott Paper Co., 109 F.3d 913, 934 (3d Cir. 1997) (describing the quandary regarding Title VII retaliation claims).
151. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
152. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
153. This was the question addressed in the Eighth Circuit's decision in Gross, which was vacated by the Supreme Court. See Gross, 526 F.3d at 361-62 (holding that the rationale of Justice O'Connor's Price Waterhouse opinion requiring direct evidence of discrimination was not undermined by Desert Place and thus that direct evidence should be required in ADEA claims).
154. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
155. Petition for a Writ of Certiorari at i, Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009) (No. 08-441), 2008 WL 4462099.
156. Petition for a Writ of Certiorari at i, Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009) (No. 08-441), 2008 WL 4462099.
157. Petition for a Writ of Certiorari at i, Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009) (No. 08-441), 2008 WL 4462099.
158. Petition for a Writ of Certiorari at i, Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009) (No. 08-441), 2008 WL 4462099.
159. Gross v. FBL Fin. Grp., Inc., No. 4:04-CV-60209-TJS, 2006 WL 6151670, at *5 (S.D. Iowa June 23, 2006), rev'd, 526 F.3d 356 (8th Cir. 2008), vacated, 129 S. Ct. 2343 (2009).
160. Gross v. FBL Fin. Grp., Inc., No. 4:04-CV-60209-TJS, 2006 WL 6151670, at *5 (S.D. Iowa June 23, 2006), rev'd, 526 F.3d 356 (8th Cir. 2008), vacated, 129 S. Ct. 2343 (2009).
161. Gross v. FBL Fin. Grp., Inc., No. 4:04-CV-60209-TJS, 2006 WL 6151670, at *5 (S.D. Iowa June 23, 2006), rev'd, 526 F.3d 356 (8th Cir. 2008), vacated, 129 S. Ct. 2343 (2009).
162. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2347 (2009) (alteration in original).
163. Gross, 2006 WL 6151670, at *1.
164. Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 358 (8th Cir. 2008), vacated, 129 S. Ct. 2343 (2009).
165. Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 358 (8th Cir. 2008), vacated, 129 S. Ct. 2343 (2009).
166. Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 358 (8th Cir. 2008), vacated, 129 S. Ct. 2343 (2009).
167. Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 358 (8th Cir. 2008), vacated, 129 S. Ct. 2343 (2009).
168. (Listing Frank Harty as counsel of record), with Brief for Respondent at 56, Gross, 129 S. Ct. 2343 (No. 08-441), 2009 WL 507026 (listing Carter G. Phillips as the counsel of record). Carter G. Phillips was counsel of record for FBL on the merits brief. Brief for Respondent, supra, at 56. Phillips is the Managing Partner of the Washington, D.C. office of Sidley Austin LLP; he is a former Supreme Court clerk and a former Assistant to the Solicitor General, and his professional biography asserts that he has argued more Supreme Court cases than any other lawyer currently in private practice. Our People-Carter G. Phillips, Sidley Austin LLP, http://www.sidley.com/carter-phillips/.
169. See Brief for Respondent, (dedicating roughly one half of the argument portion of the brief to arguing that the Court should overrule Price Waterhouse as applied to the ADEA).
170. Gross, 129 S. Ct. at 2346, 2351-52 (2009).
171. Margaret L. Moses, Beyond Judicial Activism: When the Supreme Court Is No Longer a Court, 14 U. Pa. J. Const. L. (forthcoming 2012) (manuscript at 29), available at http://ssrn.com/abstract=1781243 ("In Gross yet again, in order to make new law, the Court decided a question not put before it by the parties.").
172. This may have been quite significant in Gross. In his opening brief, Gross argued at length that the direct-evidence requirement should be abandoned because it had been very confusing; the brief even quoted Justice Kennedy's dissent in Price Waterhouse on this point. See Brief for Petitioner at 30-42, Gross, 129 S. Ct. 2343 (No. 08-441), 2009 WL 208116 (explaining the problems that followed from the direct-evidence requirement). Viewed against a backdrop that presumed Price Waterhouse applied, with an open question of whether direct evidence was required, this was probably good strategy. But if it had been apparent that the Court might abandon Price Waterhouse entirely, Gross's counsel might well have eschewed focusing on how "confusing" the current regime was. The amici likewise simply assumed that Price Waterhouse would apply. See Brief for the United States Amicus Curiae Supporting Petitioner at 20, Gross, 129 S. Ct. 2343 (No. 08-441), 2009 WL 253859 (arguing that "Price Waterhouse does not require that [the] Court impose a direct evidence requirement under the ADEA").
173. Gross, 129 S. Ct. at 2353 (Stevens, J., dissenting).
174. Transcript of Oral Argument at 27-28, Gross, 129 S. Ct. 2343 (No. 08-441), 2009 WL 832958.
175. Gross, 129 S. Ct. at 2348.
176. Gross, 129 S. Ct. at 2348.
177. Gross, 129 S. Ct. at 2348.
178. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003) (stating that § 107 of the 1991 Civil Rights Act "'respond[ed]' to Price Waterhouse" (alteration in original).
179. Gross, 129 S. Ct. at 2349.
180. Gross, 129 S. Ct. at 2349.
181. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
182. Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (2006).
183. Fair Credit Reporting Act, 15 U.S.C. §§ 1681a-1681x (2006).
184. See Gross, 129 S. Ct. at 2350 (citing Bridge v. Phx. Bond & Indem. Co., 128 S. Ct. 2131 (2008) and Safeco Ins. Co. of Am. v. Burr, 127 S. Ct. 2201 (2007). The Court also includes a "cf. " citation to a general torts treatise.
185. See Bridge, 128 S. Ct. at 2141 (interpreting 18 U.S.C. § 1964(c)'s provision providing remedies for "any person injured... by reason of a violation of section 1962 of this chapter").
186. See Safeco, 127 S. Ct. at 2205 (interpreting 15 U.S.C. § 1681m(a)'s provision prohibiting "adverse action[s]... based in whole or in part on any information contained in a consumer [credit] report" (second alteration in original).
187. See Gross, 129 S. Ct. at 2351 (citing Ky. Ret. Sys. v. EEOC, 128 S. Ct. 2361, 2363-66 (2008) and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 143 (2000).
188. See Gross, 129 S. Ct. at 2351 (citing Ky. Ret. Sys. v. EEOC, 128 S. Ct. 2361, 2363-66 (2008) and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 143 (2000).
189. See Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989) (explaining that a "traditional justification for overruling a prior case" is when "inherent confusion [has been] created by an unworkable decision").
190. Gross, 129 S. Ct. at 2352.
191. See (arguing that the authorities cited in support of the proposition that the burden-shifting instruction would be unduly confusing to juries do not actually substantiate that assertion).
192. Gross, 129 S. Ct. at 2352.
193. Gross, 129 S. Ct. at 2352 (Stevens, J., dissenting).
194. Gross, 129 S. Ct. at 2352 (Stevens, J., dissenting).
195. Gross, 129 S. Ct. at 2352 (Stevens, J., dissenting).
196. Gross, 129 S. Ct. at 2352 (Stevens, J., dissenting).
197. Gross, 129 S. Ct. at 2352 (Stevens, J., dissenting).
198. Gross, 129 S. Ct. at 2352 (Stevens, J., dissenting).
199. Gross, 129 S. Ct. at 2357-58.
200. Gross, 129 S. Ct. at 2357-58.
201. Gross, 129 S. Ct. at 2357-58.
202. Gross, 129 S. Ct. at 2357-58.
203. Gross, 129 S. Ct. at 2357-58.
204. Gross, 129 S. Ct. at 2349 (majority opinion) (emphasis added). The Court supports this statement by citing to § 115 of the Act-which contains the revisions regarding EEOC notification-and § 302 of the Act, which is not an amendment to the ADEA but rather a reference within newly created antidiscrimination protections for certain government employees to the definition of age contained within the ADEA. Civil Rights Act of 1991, Pub. L. No. 102-166, § 115, 105 Stat. 1071, 1079 (codified as amended at 29 U.S.C. § 626(e) (2006); Civil Rights Act of 1991 § 302 (codified as amended at 2 U.S.C. § 1202 (2006).
205. Civil Rights Act of 1991 § 115 (codified as amended at 29 U.S.C. § 626(e) (2006).
206. Civil Rights Act of 1991 § 115 (codified as amended at 29 U.S.C. § 626(e) (2006).
207. Civil Rights Act of 1991 § 115 (codified as amended at 29 U.S.C. § 626(e) (2006).
208. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989) (holding that a defendant could defeat a claim of disparate impact by showing merely that the "challenged practice serves, in a significant way, the legitimate employment goals of the employer").
209. See Martin v. Wilks, 490 U.S. 755, 762-68 (1989) (holding that third parties affected by a consent decree could challenge the agreement even when they had known about the litigation and failed to intervene in the prior action).
210. See Lorance v. AT&T Techs., Inc., 490 U.S. 900, 911 (1989) (holding that the statute of limitations on challenging a seniority system ran from the time of the system's adoption).
211. Civil Rights Act of 1991 §§ 104-105 (codified as amended at 42 U.S.C. § 2000e (2006), and 42 U.S.C. § 2000e-2(k) (2006) (establishing a disparate impact standard that requires a defendant to prove that a challenged practice is "job related" and a "business necessity"); (codified as amended at 42 U.S.C. § 2000e-2(n) (2006) (precluding third parties from challenging consent decrees if they had actual notice and a reasonable opportunity to object to the proposed order or if their interests were adequately represented in prior challenges); id. § 112 (codified as amended at 42 U.S.C. § 2000e-5(e) (2006) (providing that the statute of limitations for challenging an intentionally discriminatory seniority system runs from when it is adopted, when an individual becomes subject to it, or when a person is injured by its application). The override of Martin v. Wilks, concerning consent decrees, differs from the other overrides in that the amendment codified within Title VII specifies that it applies to all claims "of employment discrimination under the Constitution or Federal civil rights laws. " (codified as amended at 42 U.S.C. § 2000e-2(n) (2006). In other words, this adopts a "blanket amendment" approach similar to that which Congress considered in the bills proposed to override Gross-and with it concerns regarding notice and overbreadth. The difference between the structure of the Martin override and the other overrides interpreting substantive language in Title VII may well be explained by the fact that Martin v. Wilks, although arising under Title VII, did not interpret specific language in Title VII; rather it relied on general principles of procedural law. Martin, 490 U.S. at 762-69.
212. See Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989) (holding that racial harassment claims were not actionable under § 1981 because that section does not apply to conduct occurring after the formation of a contract).
213. See Civil Rights Act of 1991 § 101 (codified as amended at 42 U.S.C. § 1981 (2006) (expanding the prohibition on discrimination in § 1981 to include discrimination occurring in the terms and conditions of employment).
214. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102 (1991) (interpreting § 1988 to preclude shifting of experts' fees as part the allowed shifting of attorneys' fees).
215. See Civil Rights Act of 1991 § 113 (authorizing the court to award expert fees in its discretion for cases brought to enforce § 1981a, which addresses claims pursuant to various civil rights statutes, including Title VII and the ADA). This is probably appropriately characterized as a "partial" override, in that the amendments only explicitly made experts' fees available in certain employment discrimination contexts, and the prior decisions had concerned the availability of these fees in other, additional contexts.
216. See Aramco, 499 U.S. 244, 259 (1991) (holding that Title VII did not apply extraterritorially).
217. See Civil Rights Act of 1991 § 109 (adding language expanding the definition of employee to include a United States citizen in a foreign country and inserting a new subsection relating to covered entities in foreign countries). For a discussion of the hydra problem at issue. Congress may also have thought it important to add specific language to both statutes regarding potential conflicts with foreign jurisdictions' laws, although this arguably could have also been addressed through interpretation of the preexisting language. See Aramco, 499 U.S. at 275 (Marshall, J., dissenting) (arguing that the text of Title VII prior to the 1991 CRA provided support for applying the law extraterritorially to U.S. employers employing U.S. citizens abroad while avoiding conflicts with foreign law).
218. Civil Rights Act of 1991 § 102 (codified as amended at 42 U.S.C. § 1981a (2006).
219. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-60 (1975) (holding that compensatory and punitive damages are available under § 1981 and that backpay awards under § 1981 are not restricted to the two years specified for backpay recovery under Title VII).
220. See 29 U.S.C. § 626(b) (2006) (incorporating § 216(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), which, in cases involving willful violations, provides for the payment of an equal amount of liquidated damages in addition to unpaid minimum wages or unpaid overtime).
221. See Civil Rights Act of 1991 § 102 (codified as amended at 42 U.S.C. § 1981a (2006) (permitting jury trials under Title VII and the ADA).
222. See Lorillard v. Pons, 434 U.S. 575, 585 (1978) (holding that the ADEA permits jury trials); Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 912 (3d Cir. 1983) (describing a case in which the plaintiff had a jury trial on race discrimination claims brought pursuant to § 1981 and § 1983 and a bench trial for race discrimination claims brought pursuant to Title VII).
223. Compare Civil Rights Act of 1991 § 115 (codified as amended at 29 U.S.C. § 626(e) (2006) ("If a charge filed with the Commission under [the ADEA] is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought... against the respondent named in the charge within 90 days after the date of the receipt of such notice. "), with Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 4, 86 Stat. 103, 105-06 (codified as amended at 42 U.S.C. § 2000e-5(f)(1) (2006) ("If a charge filed with the Commission [under Title VII]... is dismissed by the Commission,... the Commission... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge... by the person claiming to be aggrieved. ").
224. Civil Rights Act of 1991 § 203.
225. Civil Rights Act of 1991 § 203.
226. Civil Rights Act of 1991 § 203.
227. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349-50 (2009) (asserting that Congress's "contemporaneous[] amend[ment] of the ADEA" was an important factor in its analysis).
228. 499 U.S. 244 (1991).
229. Gross, 129 S. Ct. at 2349 (citing Aramco, 499 U.S. at 256). In the same general discussion, the Gross Court also cites Lindh v. Murphy, 521 U.S. 320, 330 (1997). Gross, 129 S. Ct. at 2349. Although the Court in Lindh likewise determined that a variation was meaningful, the decision contains a far more nuanced consideration of factors in the negotiation process that should be considered before reaching such a conclusion. See Lindh, 521 U.S. at 329-30 (stating that the difference might not be indicative of congressional intent if "the two chapters had evolved separately in the congressional process").
230. Aramco, 499 U.S. at 246.
231. Civil Rights Act of 1964, Pub. L. No. 88-352, § 702, 78 Stat. 241, 255 (codified as amended at 42 U.S.C. § 2000e-1 (2006).
232. See Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, § 7, 81 Stat. 602, 604 (codified as amended at 29 U.S.C. § 626(b) (2006) (incorporating FLSA's procedural and enforcement mechanisms).
233. See Cleary v. U.S. Lines, Inc., 728 F.2d 607, 608 (3d Cir. 1984) ("[FLSA § 13(f)] provides that the acts covered by it shall not apply 'to any employee whose services during the workweek are performed in a workplace within a foreign country....'" (alteration in original).
234. See, e.g., Zahourek v. Arthur Young & Co., 567 F. Supp. 1453, 1456-57 (D. Colo. 1983) (holding that the ADEA does not apply extraterritorially), aff'd, 750 F.2d 827 (10th Cir. 1984); Cleary v. U.S. Lines, Inc., 555 F. Supp. 1251, 1263 (D.N.J. 1983) (dismissing the case on the grounds that the ADEA does not apply extraterritorially), aff'd, 728 F.2d 607 (3d Cir. 1984); Bryant v. Int'l Schs. Servs., Inc., 502 F. Supp. 472, 482 (D.N.J. 1980) (holding that Title VII did apply extraterritorially), rev'd on other grounds, 675 F.2d 562 (3d Cir. 1982).
235. Age Discrimination and Overseas Americans, 1983: Hearing Before the Subcomm. on Aging of the S. Comm. on Labor & Human Res., 98th Cong. 1-2 (1983) (statement of Sen. Charles E. Grassley, Chairman, S. Subcomm. on Aging).
236. See Older Americans Act Amendments of 1984, Pub. L. No. 98-459, § 802(a), 98 Stat. 1767, 1792 (codified as amended at 29 U.S.C. § 630 (2006) (adding to the ADEA: "[t]he term 'employee' includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country, " subject to limited exceptions to facilitate compliance with foreign law).
237. It may also have been significant that the amendment to the ADEA regarding extraterritoriality was an addition to a bill that primarily amended a different statute concerning older Americans, making any potential amendment of Title VII particularly unlikely.
238. Aramco, 499 U.S. 244, 258-59 (1991).
239. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 109(a), 105 Stat. 1071, 1077 (codified as amended at 42 U.S.C. §§ 2000e(f) (2006) (explicitly stating in the definition of employee that "[w]ith respect to employment in a foreign country, such term includes an individual who is a citizen of the United States, " subject to limited exceptions to facilitate compliance with foreign law).
240. The fact that the 1991 Congress overrode the decision does not resolve definitively whether the 1964 Congress that enacted Title VII or the 1984 Congress that amended the ADEA intended Title VII to apply extraterritorially. It does, however, suggest that the inference of meaningful variation may well be unwarranted.
241. In a further odd twist, in 1983, Justice Thomas (the author of the Gross majority opinion) was Chairman of the EEOC. Clarence Thomas, EEOC, http://www.eeoc.gov/eeoc/history/35th/ bios/clarencethomas.html (listing Clarence Thomas as the EEOC's eighth Chairman, and stating that he served from May 6, 1982, to March 8, 1990). In that capacity, he testified to the subcommittee considering amending the ADEA, arguing that Title VII already permitted extraterritorial application-in other words, he disagreed with the conclusion subsequently reached by the Supreme Court in Aramco. Age Discrimination and Overseas Americans, 1983: Hearing Before the Subcomm. on Aging of the S. Comm. on Labor & Human Res., 98th Cong. 3 (1983) (statement of Clarence Thomas, Chairman, Equal Employment Opportunity Commission). At the time then-Chairman Thomas testified, the analysis differed from the precise question faced by the Court in Aramco because it predated Congress's addition of explicit language regarding the ADEA's extraterritoriality; nonetheless, the implicit flip in position is still striking.
242. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349, 2350 n.3 (2009).
243. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349, 2350 n.3 (2009).
244. H.R. Rep. No. 102-40, pt. 2, at 4 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 697.
245. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 335-36, 338 tbl.1 (1991) (reporting that from 1975 to 1990, each Congress overrode an average of twelve Supreme Court decisions and an average of between twenty-three and twenty-four lower court decisions).
246. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982) ("The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court. "); Flood v. Kuhn, 407 U.S. 258, 284 (1972) ("If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court. "); Eskridge, supra note 25, at 151 ("[D]ynamic statutory interpretation, even against legislative expectations, is subject to override by the legislature and in fact may even be a stimulus to legislative deliberation. "); Marshall, supra note 25, at 208-15 (arguing for absolute statutory stare decisis so that Congress will know it is responsible for correcting interpretations with which it disagrees).
247. This assumes that sometime between Price Waterhouse and Beth's case Congress acted (as it did in 1991) to permit jury trials under Title VII. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 1071, 1073 (codified as amended at 42 U.S.C. § 1981a (2006) (permitting jury trials). If it had not, the reasoning discussed above could apply in a bench trial.
248. This assumes that sometime between Price Waterhouse and Beth's case Congress acted (as it did in 1991) to permit jury trials under Title VII. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 1071, 1073 (codified as amended at 42 U.S.C. § 1981a (2006) (permitting jury trials). If it had not, the reasoning discussed above could apply in a bench trial.
249. Gross, 129 S. Ct. at 2357-58.
250. This assumes that sometime between Price Waterhouse and Beth's case Congress acted (as it did in 1991) to permit jury trials under Title VII. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 1071, 1073 (codified as amended at 42 U.S.C. § 1981a (2006) (permitting jury trials). If it had not, the reasoning discussed above could apply in a bench trial.
251. Price Waterhouse v. Hopkins, 490 U.S. 228, 285 (1989) (Kennedy, J., dissenting).
252. 42 U.S.C. § 2000e-5(g) (1988) (emphasis added).
253. See, e.g., Fadhl v. City & Cnty. of San Francisco, 741 F.2d 1163, 1166-67 (9th Cir. 1984) (holding that litigants can establish liability by showing sex was a "significant factor" in a decision but that back pay and reinstatement are not available if an employer proves it would have made the same decision absent discrimination); Patterson v. Greenwood Sch. Dist. 50, 696 F.2d 293, 295 (4th Cir. 1982) (holding that a victim of discrimination is not eligible for back pay or reinstatement if the employer can prove "by clear and convincing evidence" it would have taken the same action absent discrimination (internal quotation marks omitted); Day v. Mathews, 530 F.2d 1083, 1085 (D.C. Cir. 1976) (same); King v. Laborers Int'l Union of N. Am., 443 F.2d 273, 278-79 (6th Cir. 1971) (holding that a victim of discrimination is not eligible for back pay or reinstatement if the employer can prove it had a lawful nondiscriminatory motivation for its actions that "considered by itself" would have resulted in the same action). In her brief to the Supreme Court, Ann Hopkins relied on this statutory language and some of these decisions to argue that an employer's showing it would have taken the same action should limit remedies rather than serve as an affirmative defense. See Brief for Respondent at 31-43, Price Waterhouse, 490 U.S. 228 (No. 87-1167), 1988 WL 1025872.
254. Price Waterhouse, 490 U.S. at 244-45 n.10 (plurality opinion).
255. Section 2000e-5(g)(1) does not explicitly reference "declaratory relief, " but this could be included within the general authorization of "any other equitable relief as the court deems appropriate. " 42 U.S.C. § 2000e-5(g)(1) (2006).
256. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-19 (1975) (explaining that the purpose of Title VII is to force companies to eliminate discriminatory employment practices and to "make persons whole for injuries suffered on account of unlawful employment discrimination").
257. 42 U.S.C. § 2000e-5(k) (1988).
258. There is actually one subtle difference. The remedial provision as it existed prior to the 1991 CRA, now subsection (g)(2)(A), refers not only to race, color, religion, sex, or national origin, but also to the antiretaliation provisions. See 42 U.S.C. § 2000e-5(g) (1988) (precluding certain remedies if action was taken "for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title"); see also 42 U.S.C. § 2000e-3(a) (1988) (prohibiting retaliation). Accordingly, the decision issued by the majority in Beth's case would naturally have applied to the antiretaliation provisions as well as the substantive provisions of Title VII. Even prior to Gross, lower courts were divided over whether the language added by the 1991 CRA to respond to Price Waterhouse applies to the antiretaliation provisions. See, e.g., Woodson v. Scott Paper Co., 109 F.3d 913, 933 & n.23 (3d Cir. 1997) (providing examples of lower court decisions reaching opposite conclusions on this issue).
259. Lorillard v. Pons, 434 U.S. 575, 584 (1978) ("In fact, the prohibitions of the ADEA were derived in haec verba from Title VII. ").
260. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979) (stating that the ADEA and Title VII "share a common purpose").
261. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979) (stating that the ADEA and Title VII "share a common purpose").
262. 29 U.S.C. § 626(b) (2006).
263. 29 U.S.C. § 626(b) (2006).
264. 29 U.S.C. § 626(b) (2006).
265. The Supreme Court has interpreted the RFOA provision as narrowing disparate impact liability under the ADEA. See Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395, 2404 (2008) (replacing the "business necessity" test applicable in disparate impact cases under Title VII with a requirement that a defendant must prove only that a challenged action was based on a "reasonable factor other than age"); Smith v. City of Jackson, 544 U. S 228, 239 (2005) ("It is, accordingly, in cases involving disparate impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was 'reasonable.'"). Justice Thomas disagreed with this analysis, contending that disparate impact liability was not available under the ADEA at all. See Meacham, 128 S. Ct. at 2407 (Thomas, J., concurring in part and dissenting in part) ("I write separately to note that I continue to believe that disparate impact claims are not cognizable under the [ADEA]. "); Smith, 544 U.S. at 248 (O'Connor, J., concurring in judgment, joined by Justices Kennedy and Thomas) ("I would... affirm the judgment below on the ground that disparate impact claims are not cognizable under the ADEA. "). In Smith, Justice Thomas (and also Justice Kennedy) joined a concurrence authored by Justice O'Connor that adopts the interpretation of the RFOA that I imagine above. The concurrence answers the majority's contention that absent disparate impact liability, the RFOA would be unnecessary, by explaining that the RFOA provision... plays a distinct (and clearly nonredunant) role in "mixed motive" cases. In such cases, an adverse action taken in substantial part because of an employee's age may be "otherwise prohibited" by § 4(a). The RFOA exemption makes clear that such conduct is nevertheless lawful so long as it is "based on" a reasonable factor other than age. This interpretation of the RFOA exemption is obviously hard to square with Justice Thomas's subsequent opinion (joined by Justice Kennedy) in Gross that mixed-motive claims are not available under the ADEA at all. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009).
266. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102 (1991) (interpreting § 1988 to preclude shifting of experts' fees as part the allowed shifting of attorneys' fees).
267. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102 (1991) (interpreting § 1988 to preclude shifting of experts' fees as part the allowed shifting of attorneys' fees).
268. See Price Waterhouse v. Hopkins, 490 U.S. 228, 292 (1989) (Kennedy, J., dissenting) ("Confusion in the application of dual burden-shifting mechanisms will be most acute in cases brought under 42 U.S.C. § 1981 or the Age Discrimination in Employment Act (ADEA), where courts borrow the Title VII order of proof for the conduct of jury trials. "). Justice Stevens makes this very point in his dissenting opinion in Gross. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2354 (2009) (Stevens, J., dissenting) ("Justice Kennedy's dissent in Price Waterhouse assumed the plurality's [Title VII] mixed-motives framework extended to the ADEA.... ").
269. See Gross, 129 S. Ct. at 2349 ("We cannot ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. ").
270. E.g., Protecting Older Workers Against Discrimination Act, H.R. 3721, 111th Cong. § 3 (1st Sess. 2009).
271. E.g., Protecting Older Workers Against Discrimination Act, H.R. 3721, 111th Cong. § 3 (1st Sess. 2009).
272. E.g., Protecting Older Workers Against Discrimination Act, H.R. 3721, 111th Cong. § 3 (1st Sess. 2009).
273. E.g., Protecting Older Workers Against Discrimination Act, H.R. 3721, 111th Cong. § 3 (1st Sess. 2009).
274. E.g., Protecting Older Workers Against Discrimination Act, H.R. 3721, 111th Cong. § 3 (1st Sess. 2009).
275. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 102(a), 104 Stat. 327, 331 (emphasis added). This was the original language of the ADA. In 2008, the ADA was amended and this operative language was changed to prohibit discrimination "on the basis of disability, " probably for reasons unrelated to the issue of mixed motives that is a focus here. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 5, 122 Stat. 3553, 3557 (codified as amended at 42 U.S.C. § 12112(a) (Supp. II 2009).
276. 42 U.S.C. § 12203(a) (2006) (emphasis added).
277. 42 U.S.C. § 12203(a) (2006) (emphasis added).
278. 8 U.S.C. § 1324b(a)(1)(A)-(B) (2006) (prohibiting discrimination against an employee "because of such individual's national origin, or... because of such individual's citizenship status").
279. 29 U.S.C. § 660(c)(1) (2006) (prohibiting discrimination against an employee "because" such employee files a complaint).
280. 42 U.S.C. § 5851(a)(1)(D) (2006) (prohibiting discrimination against an employee "because" such employee is participating in a proceeding under this chapter of the Atomic Energy Act).
281. 42 U.S.C. § 5851(a)(1)(D) (2006) (prohibiting discrimination against an employee "because" such employee is participating in a proceeding under this chapter of the Atomic Energy Act).
282. 42 U.S.C. § 5851(a)(1)(D) (2006) (prohibiting discrimination against an employee "because" such employee is participating in a proceeding under this chapter of the Atomic Energy Act).
283. 29 U.S.C. § 2615(a)(2) (2006) (prohibiting discrimination against an individual "for" opposing practices made unlawful under the Act).
284. 29 U.S.C. § 1140 (prohibiting discrimination against participants in or beneficiaries of employee benefit plans "for exercising" rights under covered plans or "for the purpose of interfering" with an individual's benefit rights).
285. 38 U.S.C. § 4311(a)-(b) (2006) (prohibiting discrimination "on the basis of" uniformed service or "because" an individual sought to enforce rights under the Act).
286. 29 U.S.C. § 2615(a)(2) (2006) (prohibiting discrimination against an individual "for" opposing practices made unlawful under the Act).
287. 29 U.S.C. § 2615(a)(2) (2006) (prohibiting discrimination against an individual "for" opposing practices made unlawful under the Act).
288. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350-51 (2009) ("[T]he plaintiff retains the burden of persuasion to establish that age was the 'but-for' cause of the employer's adverse action. ").
289. See Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009) (explaining that decisions so holding "do not survive Gross").
290. See Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009) (explaining that decisions so holding "do not survive Gross").
291. See Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009) (explaining that decisions so holding "do not survive Gross").
292. Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010) ("[A] plaintiff... must show that his or her employer would not have fired him but for his... disability. ").
293. Serafinn v. Local 722, Int'l Bhd. of Teamsters, 597 F.3d 908, 914-15 (7th Cir. 2010) (quoting 29 U.S.C. § 529 (2006) and 6 Oxford English Dictionary 25 (1989).
294. Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011) (holding that if a plaintiff in a First Amendment retaliation case shows his speech was a motivating factor in the adverse action, the burden shifts to the defendant to show it would have taken the same action anyway); see also Brown v. Cnty. of Cook, 661 F.3d 333, 335 (7th Cir. 2011) (same). The Greene court also collected several post-Gross decisions from other circuits that likewise continue to apply the motivatingfactor standard to First Amendment claims. Greene, 660 F.3d at 977-78.
295. Greene, 660 F.3d at 977.
296. Smith v. Xerox Corp., 602 F.3d 320, 329 (5th Cir. 2010).
297. 42 U.S.C. § 2000e-3(a) (2006).
298. Xerox, 602 F.3d at 328.
299. Xerox, 602 F.3d at 328.
300. Xerox, 602 F.3d at 328.
301. Xerox, 602 F.3d at 328.
302. Xerox, 602 F.3d at 328.
303. See, e.g., Nuskey v. Hochberg, 730 F. Supp. 2d 1, 5 (D.D.C. 2010) (announcing that the court would follow the Fifth Circuit's analysis in Smith v. Xerox Corp.).
304. See, e.g., Beckford v. Geithner, 661 F. Supp. 2d 17, 25 n.3 (D.D.C. 2009) (holding that a mixed-motive theory could not be used in a suit involving the antiretaliation provision of Title VII).
305. Beckham v. Nat'l R.R. Passenger Corp., 736 F. Supp. 2d 130, 145 (D.D.C. 2010).
306. 42 U.S.C. § 12117 (2006) (incorporating Title VII's remedies).
307. Americans with Disabilities Act of 1991, Pub. L. No. 101-336, § 102, 104 Stat. 327, 331-33 (codified as amended at 42 U.S.C. § 12112 (2006) (prohibiting discrimination "against a qualified individual with a disability because of the disability of such individual"); 42 U.S.C. § 12203(a) (2006) (prohibiting discrimination "because" an individual opposes or participates in a challenge to discriminatory acts).
308. 42 U.S.C. § 12112 (Supp. II 2009) (prohibiting discrimination against a qualified individual "on the basis of disability").
309. See, e.g., Head v. Glacier Nw., Inc., 413 F.3d 1053, 1063-65 (9th Cir. 2005) (interpreting "because of" to require proof that disability was a "motivating factor" in a decision and collecting cases from seven other circuits also permitting mixed-motive claims under similar standards); cf. Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98, 112 (2d Cir. 2001) (suggesting, without clearly deciding, that Price Waterhouse might govern the analysis). By contrast, the Sixth and Tenth Circuits never permitted mixed-motive claims under the ADA, reasoning that the statute was partially modeled on the Rehabilitation Act, which precludes mixed-motive claims.
310. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 960-62 (7th Cir. 2010) (imposing a but-for standard).
311. Bolmer v. Oliveira, 594 F.3d 134, 148 (2d Cir. 2010).
312. See, e.g., Saviano v. Town of Westport, No. 3:04-CV-522 RNC, 2001 WL 4561184, at *6 (D. Conn. Sept. 30, 2011); Warshaw v. Concentra Health Servs., 719 F. Supp. 2d 484, 503 (E.D. Pa. 2010); Ross v. Indep. Living Res. of Contra Costa Cnty., No. C08-00854 TEH, 2010 WL 2898773, at *6 (N.D. Cal. July 21, 2010) (all adopting a but-for standard).
313. See, e.g., Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324, 343 & n.40 (S.D.N.Y. 2010) (applying a motivating-factor standard but noting that the plaintiff's proof would satisfy a but-for standard as well).
314. Southerland v. DOD, 2011 M.S.P.B. 92, at *16-17 (2011).
315. Civil Rights Act of 1866, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1981 (2006).
316. See, e.g., CBOCS W., Inc. v. Humphries, 553 U.S. 442, 448 (2008) (citing cases back to 1977 in which federal appeals courts concluded that the language of § 1981 encompassed employment retaliation claims); id. at 457 (holding that § 1981 encompasses retaliation claims); McDonald v. Santa Fe Transp. Co., 427 U.S. 273, 287 (1976) (holding that § 1981, like Title VII, "is applicable to racial discrimination in private employment against white persons").
317. See CBOCS, 553 U.S. at 455 (stating that there is a "necessary overlap" between Title VII and § 1981 but that "the remedies available [under the two statutes], although related, and although directed to most of the same ends, are separate, distinct, and independent" (internal quotation marks omitted). The key substantive difference between the statutes is that disparate impact claims are not cognizable under § 1981. See Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982) ("We conclude, therefore, that § 1981... can be violated only by purposeful discrimination. ").
318. See Katz, Unifying Disparate Treatment, supra note 12, at 647 n.22 (collecting cases in which courts refused to apply the 1991 CRA framework to § 1981 claims); see also Brown v. J. Kaz, Inc., 581 F.3d 175, 182 n.5 (3d Cir. 2009) (applying the Price Waterhouse framework instead of the 1991 Title VII amendments to a § 1981 claim); Aquino v. Honda of Am., Inc., 158 F. App'x 667, 676 (6th Cir. 2005) (refusing to extend the 1991 Title VII amendments to § 1981 claims); Mabra v. United Food & Commercial Workers, 176 F.3d 1357, 1358 (11th Cir. 1999) (holding that the 1991 mixed-motive amendments do not apply to § 1981 claims); Hardy v. Town of Greenwich, 629 F. Supp. 2d 192, 199 (D. Conn. 2009) (citing Metoyer v. Chassman, 504 F.3d 919, 933-34 (9th Cir. 2007) (noting that while the Second Circuit has not directly addressed whether the 1991 mixed-motive amendments apply to § 1981 claims, other circuits have addressed the issue, and only the Ninth Circuit has held that the 1991 amendments apply to § 1981).
319. Brown, 581 F.3d at 182 n.5.
320. Brown, 581 F.3d at 182 n.5.
321. 29 U.S.C. § 633a(a) (2006) (emphasis added).
322. Ford v. Mabus, 629 F.3d 198, 205-06 (D.C. Cir. 2010).
323. Ford v. Mabus, 629 F.3d 198, 205-06 (D.C. Cir. 2010).
324. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977).
325. See, e.g., Frankel v. Peake, Civ. No. 07-3539 (WJM), 2009 WL 3417448, at *4 (D.N.J. Oct. 20, 2009) (citing Gross to hold that, in a summary judgment motion, a plaintiff needed to "show a disputed material fact, which would allow a reasonable jury to determine that age was the 'but for' cause of the employment action at issue"); Wagner v. Geren, No. 8:08 CV 208, 2009 WL 2105680, at *4 (D. Neb. July 9, 2009) (stating that it is the plaintiff's "burden to present evidence... that... the adverse action would not have occurred 'but for' [the plaintiff's] age"); Glenn v. Bair, 643 F. Supp. 2d 23, 29 (D.D.C. 2009) (holding that "[a]t all times... the plaintiff retains the burden of persuasion to prove... that age was the but-for cause of the challenged employer decision" (internal quotations omitted).
326. 29 U.S.C. § 794 (2006); 34 C.F.R. 100.7(e) (2011); see, e.g., Gard v. U.S. Dep't of Educ., 752 F. Supp. 2d 30, 36 (D.D.C. 2010) (citing Gross for the proposition that a "plaintiff seeking vindication under the Rehabilitation Act must prove that his disability was the 'sole' or 'but-for' reason for the employer's actions or inactions, regardless of whether the plaintiff advances a claim of discrimination based on disparate treatment, mixed-motive, or retaliation").
327. 28 U.S.C. § 1875 (2006); see, e.g., Williams v. District of Columbia, 646 F. Supp. 2d 103, 109 (D.D.C. 2009) (citing Gross for the rule that a plaintiff must demonstrate that jury service was the but-for cause of the challenged adverse employment action).
328. 29 U.S.C. § 1140 (2006); see, e.g., Cameron v. Idearc Media Corp., No. 08-12010-LTS, 2011 WL 4054864, at *5, *9 (D. Mass. Sept. 9, 2011) (citing Gross to hold that mixed-motive claims are not cognizable under the ADEA and then stating "[t]he framework for analysis of the Plaintiffs' ERISA claim is essentially the same as that discussed... with regard to the ADEA claim").
329. 29 U.S.C. § 2615(a)(2), (b)(1) (2006).
330. Compare 29 U.S.C. § 2615(a)(2), (b) (2006) (specifying that "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter" or "because such individual has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter"), with 42 U.S.C. § 2000e-3(a) (2006) ("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... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.... ").
331. 29 C.F.R. § 825.220(c) (2008).
332. See Hunter v. Valley View Local Schs., 579 F.3d 688, 691-92 (6th Cir. 2009) (holding that the FMLA "authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors"); cf. Wilson v. Noble Drilling Servs., Inc., 405 F. App'x 909, 912 n.1 (5th Cir. 2010) (noting uncertainty as to whether the mixed-motive framework applies in FMLA cases but declining to resolve the issue).
333. Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1004 (10th Cir. 2011).
334. See Burgess v. JHM Hotels, LLC, C.A. No. 6:08-3919-HMH-BHH, 2010 WL 1493132, at *6 (D.S.C. Apr. 13, 2010) (noting that there was a "serious question" as to whether the Price Waterhouse mixed-motive framework survived Gross); Rasic v. City of Northlake, No. 08 C 104, 2009 WL 3150428, at *17 (N.D. Ill. Sept. 25, 2009) ("[T]here is a serious question as to whether the mixed-motive theory of FMLA retaliation survives the Supreme Court's recent decision in Gross....").
335. See Dianne Avery et al., Employment Discrimination Law 316 (8th ed. 2010) (stating that "as a practical matter, discrimination claims based on race or ancestry should be brought under both § 1981 and Title VII" because under § 1981 compensatory and punitive damages are uncapped and back-pay awards are not limited to two years).
336. See, e.g., Cathy Ventrell-Monsees, President, Workplace Fairness, Statement at the EEOC Meeting: Age Discrimination in the 21st Century-Barriers to the Employment of Older Workers (July 15, 2009), available at http://www.eeoc.gov/eeoc/meetings/7-15-09/ventrell-monsees.cfm (remarking that an "increasing number of older women and older minorities... pursue claims under the ADEA and Title VII").
337. See Nicole Buonocore Porter, Sex Plus Age Discrimination: Protecting Older Women Workers, 81 Denv. U. L. Rev. 79, 103-06 (2003) (describing how older women face challenges in proving prima facie disparate treatment on account of age or sex in situations where discrimination is occurring because of both age and sex, and neither their older male nor their younger female coworkers are being discriminated against). Courts disagree about how to analyze these claims. For a case permitting age to be considered as a "plus" factor relevant in the Title VII analysis, see Arnett v. Aspin, 846 F. Supp. 1234, 1240 (E.D. Pa. 1994).
338. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
339. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
340. See Brian S. Clarke, Grossly Restricted Pleading: Twombly/Iqbal, Gross, and Cannibalistic Facts in Compound Employment Discrimination Claims, 2010 Utah L. Rev. 1101, 1103-04 & n.22 (giving examples of post-Gross cases in which courts have dismissed cases due to pleadings of inconsistent facts for different theories of discrimination, as well as examples of courts allowing cases to proceed despite inconsistent alternative theories).
341. The actual significance of the difference between the causation standard applied in Title VII and the standard now applied in ADEA cases can be difficult to measure, but at least one simulated jury study found it influenced case outcomes. See David Sherwyn & 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, 903 (2010) ("Findings from our study suggest that while the outcomes (involving employer liability) are comparable, plaintiffs in cases with a motivating factor jury instruction were significantly more likely to receive litigation costs and attorney fees than plaintiffs in cases with the pretext jury instruction. ").
342. See, e.g., Cal. Gov't Code § 12920 (West Supp. 2012) ("It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. "); N.Y. Exec. Law § 296 (McKinney Supp. 2012) ("It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of an individual's age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. "); Or. Rev. Stat. § 659A.006(2) (2009) ("The opportunity to obtain employment or housing or to use and enjoy places of public accommodation without unlawful discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or disability hereby is recognized as and declared to be a civil right. ").
343. Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 76:9 n.45 (7th ed. 2011) (listing state court cases which refer to federal case law in interpreting state antidiscrimination statutes); see also, e.g., AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) ("By adopting the [Texas Commission on Human Rights Act], the [Texas] Legislature intended to correlate state law with federal law in employment discrimination cases.... Therefore, we look to federal law to interpret the Act's provisions. " (quotations and citations omitted).
344. See, e.g., Ames v. Cartier, Inc., 193 F. Supp. 2d 762, 767 (S.D.N.Y. 2002) ("As an initial matter, the court notes that analysis of claims of discrimination under [New York State law and New York City law] proceeds under the same analytical framework as Title VII claims.... Therefore, the following discussion of plaintiff's Title VII claims applies equally to his state and local law claims. " (citation omitted).
345. See Claudia Center & Andrew J. Imparato, Redefining "Disability" Discrimination: A Proposal to Restore Civil Rights Protections for All Workers, 14 Stan. L. & Pol'y Rev. 321, 334-35 (2003) (stating that although the vast majority of states had adopted antidiscrimination laws that tracked the ADA, several states rejected federal case law that narrowed the scope of qualifying disabilities and instead interpreted their identically worded state statutes to provide broader protections). For a specific instance of a state court interpreting a state statute to provide more robust protections than federal law, see State Div. of Human Rights v. Xerox Corp., 480 N.E.2d 695, 698 (N.Y. 1985).
346. For example, the New York Human Rights Law permits uncapped punitive damages. See Greenbaum v. Handelsbanken, 67 F. Supp. 2d 228, 266 (S.D.N.Y. 1999) (holding that a state law capping damages awards did not apply to punitive damages). Title VII, by contrast, caps such damages on a sliding scale (based on the size of the defendant) that ranges from $50,000 to $300,000. 42 U.S.C. § 1981a(b)(3) (2006).
347. See, e.g., Harrison v. Olde Fin. Corp., 572 N.W.2d 679, 684 n.15 (Mich. Ct. App. 1997) (noting that because Michigan's Civil Rights Act was patterned after the 1964 federal Civil Rights Act, the 1991 amendments to Title VII overriding Price Waterhouse did not affect the court's reasoning).
348. See, e.g., Ames, 193 F. Supp. 2d at 767 (stating, in a case applying Title VII's mixedmotive framework, that "analysis of claims of discrimination under the New York State Human Rights Law and the New York City Human Rights Law proceeds under the same analytical framework as Title VII claims"); see also Mittl v. N.Y. State Div. of Human Rights, 794 N.E.2d 660, 662 (N.Y. 2003) ("The standards for establishing unlawful discrimination under [New York law] are the same as those governing title VII cases under the Federal Civil Rights Act of 1964.... ").
349. Smith v. Anchorage Sch. Dist., 240 P.3d 834, 842 (Alaska 2010).
350. Smith v. Anchorage Sch. Dist., 240 P.3d 834, 842 (Alaska 2010).
351. Smith v. Anchorage Sch. Dist., 240 P.3d 834, 842 (Alaska 2010).
352. See Schmitz v. Village of Breckenridge, No. 08-14599-BC, 2009 WL 3273255, at *11-13 (E.D. Mich. Oct. 9, 2009) (concluding that Gross did not apply to age discrimination claims under state law because the distinctions between the ADEA and Title VII were not present in the Michigan statute).
353. See Baker v. Silver Oak Senior Living Mgmt. Co., 581 F.3d 684, 689-90 (8th Cir. 2009) (stating that the Missouri Human Rights Act "is less demanding than the ADEA" as interpreted in Gross and requires only a showing that "age was a contributing factor in the [employer's] termination decision" (alteration in original) (internal quotation marks omitted).
354. See Gross v. FBL Fin. Servs., Inc., 588 F.3d 614, 617-21 (8th Cir. 2009) (allowing the plaintiff's mixed-motive age-discrimination claim under the Iowa Civil Rights Act to go to a jury).
355. See Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 452 n.7 (1st Cir. 2009) (explaining that plaintiff's burden to establish age discrimination under Puerto Rican law was "lighter" than under the ADEA as interpreted in Gross and that plaintiff's prima facie case shifts a burden of persuasion to the defendant to prove that the challenged action "was not motivated by discriminatory age animus" (internal quotation marks omitted).
356. See Diaz v. Jiten Hotel Mgmt., Inc., 762 F. Supp. 2d 319, 339 n.15 (D. Mass. 2011) (suggesting that a mixed-motive jury instruction could be appropriate for an age discrimination claim under Massachusetts law even while recognizing that "[m]ixed-motive instructions are no longer appropriate under the ADEA after Gross").
357. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105 n.6 (2d Cir. 2010).
358. See, e.g., Holt v. U.S. Bank Nat'l Ass'n, No. 4:09CV00818 JLH, 2010 WL 3614135, at *3 & n.5 (E.D. Ark. Sept. 8, 2010) (stating that claims under Arkansas law are analyzed using the same McDonnell Douglas burden-shifting framework as are ADEA claims); Puckett v. McPhillips Shinbaum, No. 2:06-CV-1148-ID, 2010 WL 1729104, at *5 & n.3 (M.D. Ala. Mar. 30, 2010) (delivering a recommendation from the magistrate judge to the district court that the plaintiff's success or failure under the ADEA also determines the outcome of the plaintiff's state claims); Horan v. Sears Roebuck & Co., No. 3:07cv1582 (WWE), 2009 WL 3820654, at *1 n.1 (D. Conn. Sept. 28, 2009) (stating that Connecticut courts look to ADEA precedent in analyzing claims under the Connecticut Fair Employment Practices Act).
359. Gross, 588 F.3d at 617, 621.
360. For the proposed law, which was introduced in substantively identical form in both chambers of Congress, see Protecting Older Workers Against Discrimination Act, S. 1756, 111th Cong. (1st Sess. 2009) and Protecting Older Workers Against Discrimination Act, H.R. 3721, 111th Cong. (1st Sess. 2009).
361. See Judy Greenwald, Age-Bias Bill Would Ease Burden for Plaintiffs, Bus. Ins. (Oct. 18, 2009), http://www.businessinsurance.com/article/20091018/ISSUE01/310189980 ("Legislation that seeks to make it easier for employees to prevail in age discrimination cases looks likely to win approval, observers say.").
362. Jacqueline Go, Comment, Another Move Away From Title VII: Why Gross Got It Right, 51 Santa Clara L. Rev. 1025, 1027 n.18 (2011).
363. H.R. 3721 § 2(a)(3).
364. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2356 (Stevens, J., dissenting) (stating that rejecting the 1991 CRA's standard was "reasonabl[e]" but that the Court should have "adhere[d] to [Price Waterhouse's] motivating-factor test").
365. See of course, it is impossible to know definitively whether the committee report that accompanied the 1991 CRA was a correct statement of that Congress's legislative intent. Justice Scalia and others would be quick to point out that a statement in a committee report has not garnered a majority vote in both houses.
366. H.R. 3721 §§ 2(b), 3.
367. H.R. 3721 §§ 2(b), 3.
368. H.R. 3721 §§ 2(b), 3.
369. H.R. 3721 §§ 2(b), 3.
370. H.R. 3721 §§ 2(b), 3.
371. H.R. 3721 §§ 2(b), 3.
372. H.R. 3721 §§ 2(b), 3.
373. This relates to a notice problem discussed more fully below.
374. The Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5, overrode Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), a decision regarding the statute of limitations in Title VII cases alleging pay discrimination. In that statute, Congress addressed the hydra problem in a more modest fashion: it explicitly amended the text of Title VII, the ADEA, the ADA, and the Rehabilitation Act, the acts where the issue might be expected to arise most frequently. Lilly Ledbetter Fair Pay Act of 2009 §§ 3-5. This was insufficient to end reliance on Ledbetter as a shadow precedent. In a recent case arising under the FMLA, the district court held Ledbetter controlling because Congress had not amended the FMLA when it amended these other statutes. Maher v. Int'l Paper Co., 600 F. Supp. 2d 940, 950 n.5 (W.D. Mich. 2009).
375. H.R. 3721 § 3. Obviously, Congress could identify all relevant provisions and indicate that they should be amended separately, but this draft bill does not do so, and any attempt to do so would lose the advantages that the blanket amendment provides in terms of not forcing Congress to attempt to identify all relevant laws to which Gross might be applied and muster the political will to amend them all.
376. H.R. 3721 § 3. Obviously, Congress could identify all relevant provisions and indicate that they should be amended separately, but this draft bill does not do so, and any attempt to do so would lose the advantages that the blanket amendment provides in terms of not forcing Congress to attempt to identify all relevant laws to which Gross might be applied and muster the political will to amend them all.
377. H.R. 3721 § 3. Obviously, Congress could identify all relevant provisions and indicate that they should be amended separately, but this draft bill does not do so, and any attempt to do so would lose the advantages that the blanket amendment provides in terms of not forcing Congress to attempt to identify all relevant laws to which Gross might be applied and muster the political will to amend them all.
378. 29 U.S.C. § 794(a) (2006).
379. See Davenport v. Idaho Dep't of Envtl. Quality, No. CV 05-054-E-LMB, 2008 WL 5061678, at *1-2 (D. Idaho May 20, 2008) (applying Ninth Circuit precedent to conclude that because of the use of the phrase "'solely by reason of,'... a mixed motive analysis is not appropriate when applying the Rehabilitation Act"); see also Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000) ("The elimination of the word 'solely' from the causation provision of the ADA suggests forcefully that Congress intended the statute to reach beyond the Rehabilitation Act to cover situations in which discrimination on the basis of disability is one factor, but not the only factor, motivating an adverse employment action.").
380. On the other hand, a general rule of statutory interpretation governs against repeals or modifications of statutes by implication. See, e.g., Morton v. Mancari, 417 U.S. 535, 550 (1974) (holding that in the absence of expressed intent to repeal, repeal by implication is only appropriate when there is an irreconcilable difference between earlier and later statutes). It is thus possible that courts would apply this canon and refuse to enforce the causation standard announced in the Gross override if language in other statutes was clearly inconsistent.
381. See, e.g., Hayut v. State Univ. of N.Y., 352 F.3d 733, 744-45 (2d Cir. 2003) (borrowing from Title VII "hostile environment" case law to determine whether plaintiff presented sufficient evidence to support a claim under § 1983 regarding harassment in the education context); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 935 (2d Cir. 1988) (drawing upon the parallel between Title VII and the Fair Housing Act and holding that because Title VII does not require a plaintiff to prove discriminatory intent, neither does the Fair Housing Act).
382. Employment Non-Discrimination Act of 2011, S. 811, 112th Cong. § 2 (2011); Employment Non-Discrimination Act, H.R. 1397, 112th Cong. § 2 (2011).
383. I credit Jamie Prenkert for this point.
384. See Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281-82 (1989) (arguing that the principle of legislative supremacy precludes judicial policy making when statutory directives are clear).
385. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is. ").
386. Linda D. Jellum, "Which Is to Be Master, " the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L. Rev. 837, 841 (2009) (arguing that many such directives would be unconstitutional violations of the separation of powers doctrine).
387. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2348 (2009) (rejecting the petitioner's argument that decisions construing Title VII should control the Court's decision on the ground that "Title VII is materially different with respect to the relevant burden of persuasion").
388. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2348 (2009) (rejecting the petitioner's argument that decisions construing Title VII should control the Court's decision on the ground that "Title VII is materially different with respect to the relevant burden of persuasion").
389. As a threshold matter, some would take issue with the basic premise that Congress, a collection of 535 voting members with individual objectives and agendas, can have any unified intent at all. Others argue, I think convincingly, that one can nonetheless ascribe "group intent" to Congress. See, e.g., Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 82-83 (2010) (arguing in favor of attributing group intent to Congress because "we routinely attribute intent to a group of people based on the intent of a subset of that group, provided that there is agreement in advance about what role the subgroup will play"); Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 864-65 (1992) (reviewing critiques of ascribing group intent to Congress but concluding that while "[a]ll this is to say that ascribing purposes to groups and institutions is a complex business, and one that is often difficult to describe abstractly[,]... that fact does not make such ascriptions improper").
390. As a threshold matter, some would take issue with the basic premise that Congress, a collection of 535 voting members with individual objectives and agendas, can have any unified intent at all. Others argue, I think convincingly, that one can nonetheless ascribe "group intent" to Congress. See, e.g., Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 82-83 (2010) (arguing in favor of attributing group intent to Congress because "we routinely attribute intent to a group of people based on the intent of a subset of that group, provided that there is agreement in advance about what role the subgroup will play"); Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 864-65 (1992) (reviewing critiques of ascribing group intent to Congress but concluding that while "[a]ll this is to say that ascribing purposes to groups and institutions is a complex business, and one that is often difficult to describe abstractly[,]... that fact does not make such ascriptions improper").
391. Gross, 129 S. Ct. at 2349.
392. Gross, 129 S. Ct. at 2349.
393. See, e.g., Frank B. Cross, The Theory and Practice of Statutory Interpretation 171 (2009) (referring to committee reports as "a relatively reliable indicator of legislative intent" as compared with sponsor statements and other sources of legislative history); (depicting committee reports as the "most authoritative" in the hierarchy of legislative-history sources used by the Supreme Court).
394. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 335-36, 338 tbl.1 (1991) (reporting that from 1975 to 1990, each Congress overrode an average of twelve Supreme Court decisions and an average of between twenty-three and twenty-four lower court decisions).
395. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 335-36, 338 tbl.1 (1991) (reporting that from 1975 to 1990, each Congress overrode an average of twelve Supreme Court decisions and an average of between twenty-three and twenty-four lower court decisions).
396. Field v. Mans, 516 U.S. 59, 75 (1995) (emphasis added).
397. Cf. Lindh v. Murphy, 521 U.S. 320, 329 (1997) (observing that where provisions "evolve[] separately in the congressional process, only to be passed together at the last minute, " there is a risk that, "in the rough-and-tumble, " no one considers the significance of differences between the texts of the different provisions passed).
398. See Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv. L. Rev. 593, 636 (1995) (describing canons that Schacter characterizes as "disciplinarian" as justified by a belief that "politics easily runs amok, and the court must 'discipline' the political process through deliberately crafted interpretive rules" and observing that "[t]he principal form of discipline is narrow, text-based interpretation that limits the reach of legislation by requiring exacting specificity in statutory language").
399. I am not suggesting that this would be an ideal approach. It would be quite hard to determine whether such a report represented the interests of a true majority of Congress. See generally James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 Mich. L. Rev. 1 (1994) (discussing risks posed by reliance upon post-enactment legislative history, although ultimately arguing that it should be considered at times and proposing factors that courts should consider when assessing its reliability).
400. A joint resolution, unlike a committee report, is passed by both houses of Congress and signed by the President, thereby eliminating concerns that it did not represent the desires of a true majority of Congress or satisfy the Constitution's bicameralism and presentment requirements. See U.S. Const. art. 1, § 7, cl. 3 ("Every... Resolution... to which the Concurrence of the Senate and House of Representatives may be necessary... shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him.... ").
401. Cf. Flood v. Kuhn, 407 U.S. 258, 275, 285 (1972) (holding that Congress's failure to enact an override of prior judicial opinions excluding professional baseball from antitrust regulation should be understood as approval of those prior decisions).
402. See, e.g., United States v. Wells, 519 U.S. 482, 496 (1997) ("[W]e have frequently cautioned that it is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law. " (citations omitted) (internal quotation marks omitted); Johnson v. Transp. Agency, 480 U.S. 616, 672 (1987) (Scalia, J., dissenting) (disagreeing with the majority's reasoning that because Congress had not amended Title VII to override a prior Court decision interpreting Title VII to permit affirmative action, the Court could assume that its prior interpretation was correct and stating that "congressional inaction is a canard"); Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969) ("Congressional inaction frequently betokens unawareness, preoccupation, or paralysis. "); Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 11 (1942) ("The search for significance in the silence of Congress is too often the pursuit of a mirage. "); Eskridge, supra note 23, at 94 (citing formalist, realist, and systemic problems with inferring legislative intent from legislative inaction and concluding that "legislative inaction rarely tells us much about relevant legislative intent").
403. See, e.g., Nancy C. Staudt et al., Judicial Decisions as Legislation: Congressional Oversight of Supreme Court Tax Cases, 1954-2005, 82 N.Y.U. L. Rev. 1340, 1354, 1386-87 (2007) (discussing an empirical study finding that Congress codified 7% of Supreme Court tax cases and exploring reasons for codification).
404. As noted above, this was deemed quite significant by the dissenters in Gross, who characterized Congress's actions as "ratif[ying] Price Waterhouse's [motivating-factor test]. " Gross, 129 S. Ct. at 2355 (Stevens, J., dissenting).
405. My thanks to Jamie Prenkert for helping me articulate this point.
406. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994) (emphasis added).
407. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
408. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
409. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
410. As noted, Congress added an explicit provision defining the causal standard as "motivating factor" and a limitation on remedies, but, as established in Part IV, the preexisting language of Title VII could also easily bear this interpretation.
411. Sometimes courts deem such small differences to be a meaningful variation, while other times they gloss over differences and instead aver that the language is similar enough that it should bear a consistent meaning. In the particular example given in the text, courts have generally interpreted these differences in causation language among employment discrimination statutes to be insignificant. (Discussing how courts have applied Gross's interpretation of "because of" to other statutes prohibiting discrimination "on the basis of" or "by reason of" the outlawed conduct).
412. 29 U.S.C. § 794(a) (2006). The Rehabilitation Act and its relationship to other antidiscrimination statutes provides a good example of the complexity that can arise when applying the in pari materia canon. Long before Gross, courts struggled to determine whether to interpret the causation standard under the ADA as consistent with Title VII or with the Rehabilitation Act. The Supreme Court has never ruled on this question. Most circuits concluded (at least prior to Gross) that mixed-motive claims were cognizable under the ADA because the operative language of the relevant provision was drawn from Title VII, but the Sixth and Tenth Circuits followed Rehabilitation Act precedent to preclude mixed-motive claims under the ADA as well. See Macy v. Hopkins Cnty. Sch. Bd., 484 F.3d 357, 363 n.2 (6th Cir. 2007) (discussing this split). As noted above, Gross raises new questions regarding the viability of mixed-motive claims under the ADA.
413. 29 U.S.C. § 623(f) (2006).
414. Discussing the significance of the RFOA defense in the causation question.
415. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
416. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
417. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
418. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
419. See, e.g., Ames v. Cartier, Inc., 193 F. Supp. 2d 762, 767 (S.D.N.Y. 2002) (applying the Title VII mixed-motive standard, including the motivating-factor analysis, to state and local claims based on statutes in which motivating-factor language was not added following Price Waterhouse).
420. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
421. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
422. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
423. The proposed override of Gross was sponsored primarily by Democrats in both the House and the Senate. See Protecting Older Workers Against Discrimination Act, S. 1756, 111th Cong. (1st Sess. 2009) (listing as sponsors Senators Harkin, Leahy, Durbin, Specter, Kohl, Schumer, Franken, Sanders, Brown, Cardin, Merkley, Feinstein, Dodd, Boxer, Lautenberg, Kaufman, and Nelson of Florida); Protecting Older Workers Against Discrimination Act, H.R. 3721, 111th Cong. (1st Sess. 2009) (listing as sponsors Representatives George Miller of California, Conyers, Andrews, Nadler of New York, Courtney, Chu, Clarke, Holt, Hare, Kildee, Loebsack, Sablan, Scott of Virginia, Hirono, Woolsey, Bishop of New York, and Sestak).
424. Cf. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 281-83 (1976) (establishing that "reverse" racial discrimination claims brought by whites are analyzed under the same burdenshifting framework as claims brought by racial minorities).
425. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
426. This prior work includes Deborah A. Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, 84 Notre Dame L. Rev. 511 (2009).
427. This is also important to ensure that overrides Congress enacted prior to Gross are effective. In some sense, Gross is a result of what could be characterized as a bait and switch on Congress regarding the significance courts will ascribe to legislative history and the inferences that would be drawn from "neglect[ing]" to amend all other potentially relevant statutes. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349 (2009); cf. William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court 1993 Term-Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 85 (1994) (describing significant changes in courts' statutory interpretation canons as having a "bait and switch" quality).
428. See EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006) ("In the employment discrimination context, 'cat's paw' refers to a situation in which a biased subordinate, who lacks decision-making power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action. "); Sara Atherton Mason, Note, Cat's Paw Cases: The Standard for Assessing Subordinate Bias Liability, 38 Fla. St. U. L. Rev. 435, 436-37 (2011) ("The cat's paw principle derives from a fable... in which a monkey convinces a gullible cat to pull chestnuts from a hot fire.... [W]ith subordinate bias liability, the monkey is the person who convinces the decisionmaker, the cat, to unknowingly engage in employment discrimination. " (footnotes omitted).
429. BCI Coca-Cola, 450 F.3d at 484-85 (collecting cases demonstrating the variety of standards applied by various circuits).
430. 131 S. Ct. 1186 (2011).
431. 38 U.S.C. § 4311(c)(1) (2006). USERRA probably includes this language because it was enacted in 1994, when the 1991 CRA and the fight over Price Waterhouse were still fresh in congressional memories. Uniformed Services Employment and Reemployment Rights Act of 1994, Pub. L. No. 103-353, § 2, 108 Stat. 3149, 3153 (codified as amended at 38 U.S.C. § 4311(c)(1) (2006).
432. Staub, 131 S. Ct. at 1192.
433. See, e.g., Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir. 2000) (collecting and discussing "cat's paw" cases that analyze derivative liability under the ADEA, Title VII, and § 1981 in terms of agency principles and not mentioning differences in language among these statutes).
434. See Wojtanek v. Dist. No. 8, Int'l Ass'n of Machinists & Aerospace Workers, 435 F. App'x 545, 549 (7th Cir. 2011) (holding that in cat's paw cases under the ADEA, a subordinate's age-related bias must be "the determinative factor-not just a motivating factor" in the decision to take adverse action against the plaintiff); Simmons v. Sykes Enters. Inc., 647 F.3d 943, 949-50 (10th Cir. 2011) (holding that the plaintiff must prove that a subordinate's age-related animus was the but-for cause of the ultimate decision).
435. See Mark J. Chumley, Cat's Paw Liability Arguably Not an Option in ADA Cases in the 6th and 10th Circuits, Keating Muething & Klekamp PLL (Mar. 18, 2011), http:// www.kmklaw.com/assets/pdf/blogpost_164.pdf (arguing that in addition to ADEA claims, "ADA claims in the Sixth and Tenth Circuits should also be outside the [Staub] decision since they require that a disability be the 'sole reason' for adverse employment action").
436. See, e.g., Ordogne v. AAA Tex., LLC, No. H-09-1872, 2011 WL 3438466, at *1, *4 (S.D. Tex. Aug. 5, 2011) (applying Staub in a § 1981 case); Blount v. Ohio Bell Tel. Co., No. 1:10-CV-01439, 2011 WL 867551, at *1, *6 (N.D. Ohio Mar. 10, 2011) (applying Staub in a FMLA case).
437. Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2349 (2009).