Causation, Part 16 (Gross)

In this post, I explore how the Gross decision mischaracterized the 1991 amendments to Title VII and their effect on the ADEA.

As we discussed in the last post, Congress’ reaction to Price Waterhouse was mixed. Price Waterhouse has a two-part structure. First, the plaintiff has to prove a protected trait played a motivating factor in an employment decision. Second, if the employee proves this, the employer could completely escape liability if it proved it would have made the same decision, absent the improper consideration of race, gender or other traits.

Through the 1991 amendments, Congress reaffirmed the first part of the holding, that a plaintiff can prevail on a discrimination claim by establishing a protected trait played a motivating factor in a decision. This portion of the 1991 amendments added nothing new to Title VII. It simplify codified a definition that already existed in the case law.

Congress believed that the Supreme Court got the first part of the Price Waterhouse analysis right and the second half of the analysis wrong.

Congress believed that this second part favored employers too much. It changed the second part of the test to favor employees more. Under the 1991 amendments, if the employer established its affirmative defense, it would still be liable for violating Title VII. The affirmative defense would give the employer a partial defense to certain kinds of damages. This is very different than the second half of Price Waterhouse, which would have allowed the employer to escape liability completely upon proof of the affirmative defense. This change to the second part of Price Waterhouse is codified in a different part of Title VII, 42 U.S.C. § 2000e-5(g)(2)(B).

To reiterate, Congress thought the Supreme Court’s interpretation of Title VII in Price Waterhouse was too conservative. Congress liberalized Title VII through the 1991 motivating factor amendments by making the second part of the Price Waterhouse test more employee-friendly. It is highly problematic for the Court in Gross to take this history and use it to justify narrowing the reach of the ADEA.

Nonetheless, the Court does so. It claims that because Congress did not amend the ADEA to include the motivating factor language, then Congress intended to use the more rigorous “but for” standard for age discrimination claims. This is the explanation least consistent with history of the statutes, the structure of the statutes, and the Court’s own precedent.

Admittedly, the failure to amend the ADEA in 1991 introduces some ambiguity about Congress’ intent. But those questions do not go to the entire motivating factor analysis. Rather, the ambiguity only regards the second half of Price Waterhouse.

With or without the 1991 amendments, Title VII discrimination claims would use a motivating factor standard. The only thing the 1991 “motivating factor” amendments changed about Title VII was the affirmative defense to liability. This new, more employee-friendly affirmative defense was not added to the ADEA. The question Gross should have asked is what it means for the ADEA to lack this new affirmative defense. In the next post, I will explore the available options.

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