In 1991, Congress responded to several Supreme Court decisions by amending Title VII. Congress inserted language in Title VII making it clear that a plaintiff may prevail under Title VII if she establishes a protected trait was a “motivating factor” for a decision. 42 U.S.C. § 2000e-2(m) (2006). This portion of the 1991 amendment affirms Price Waterhouse. Congress affirmed the decision by explicitly inserting a portion of its holding into the statute.
The 1991 amendments also codified the two-part structure described in Price Waterhouse. Congress inserted an affirmative defense into the statute. Congress’ disagreement with Price Waterhouse related to the effect of the affirmative defense. In Price Waterhouse, the Court held that when the employer successfully established the affirmative defense, it would not face liability. Congress disagreed that the proof of the affirmative defense should erase all employer liability. Instead, Congress provided that the employer may establish a limited defense as to damages only if it shows it would have made the same decision absent a protected trait. 42 U.S.C. § 2000e-2(m) & § 2000e-5(g)(2)(B).
In Gross, the Supreme Court will rely on an inappropriate characterization of the relationship between Price Waterhouse and the 1991 amendments to justify its causation analysis under the ADEA. Through the 1991 amendments, Congress largely reaffirmed Price Waterhouse. It only disagreed with the decision to the extent that it thought the affirmative defense was too employer-friendly.
When Congress amended Title VII in 1991, it did not add similar language to the ADEA or the ADA. Questions remained about what the lack of amendment meant, especially in the ADEA context. Should the courts interpret the ADEA to be consistent with the newly amended Title VII, should the courts interpret the ADEA through the lens of Price Waterhouse, or did the ADEA call for a different analysis?