Causation, Part 14 (Gross)

In prior posts I examined the Price Waterhouse decision and the 1991 amendments to Title VII. In this post, we fast forward to the Supreme Court’s 2009 decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). Gross represents the next significant case in the Supreme Court’s causation jurisprudence.

In Gross, the Court held that to prevail on a discrimination claim under the Age Discrimination in Employment Act (ADEA) a plaintiff must establish “but for” cause. Remember that there are two important causation questions at play: (1) what is the substantive causation burden and (2) which litigant is required to establish causation.

Gross is in direct conflict with the plurality’s opinion in Price Waterhouse, which held that a plaintiff proceeding on a discrimination claim under Title VII must establish that a protected trait played a motivating factor in an employment decision.

This post will walk through the Gross decision and subsequent posts will deconstruct that decision. Gross did not come before the Court as a causation case, a key fact that I will discuss in a subsequent post. The question the Court accepted was whether a worker must present direct evidence of age discrimination to claim the benefit of a motivating factor analysis under the ADEA. The Court did not answer this question. Rather, the Court answered the very different question of whether the ADEA allowed a motivating factor analysis at all.

Given the existence of Price Waterhouse, the Court first had to explain why it was not following that decision. In one paragraph, the Court explained that the ADEA is different than Title VII because Congress chose to amend Title VII in 1991 to explicitly include a motivating factor analysis. Congress did not so amend the ADEA. The Court characterized Congress’ failure to amend the main provisions of the ADEA as proof that the causation analysis should proceed differently under the two statutes.

Having cast aside Price Waterhouse, the majority examines the text of the ADEA. Justice Thomas looks up the meaning of the words “because of” in a Webster’s dictionary and finds these words mean “by reason of” or “on account of.” He claims this is the “ordinary” meaning of the words “because of.” He then cites two cases from other contexts and a torts treatise to say that the ordinary meaning “because of” means “but for” cause.

In a quick sentence Justice Thomas then declares that this also means that the plaintiff bears the burden of establishing causation. Justice Thomas reimagines prior ADEA cases as requiring a plaintiff to establish “but for” cause. In Section III of the opinion, Justice Thomas noted that if Price Waterhouse came before the current court, it would likely not be decided the same way. He noted that the decision’s burden-shifting structure is difficult to apply and should not be extended into the ADEA context.

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