Causation, Part 17 (Gross)

In this post, I explore how the Supreme Court’s Gross decision makes unsupported factual leaps. The story it tells about the relationship between Title VII, the ADEA, and the 1991 amendments to Title VII is just a guess. Unfortunately, this “guess” is now enshrined in a Supreme Court case, solidifying its power to become the dominant narrative about these statutes.

Through its 1991 amendments to Title VII, Congress affirmed and codified the first part of Price Waterhouse’s holding. Those amendments also changed and liberalized the second half of that holding. The 1991 motivating factor amendments changed the nature of the affirmative defense available to employers, making it a partial defense to damages rather than a complete defense to liability.

So why did Congress not amend the ADEA in a similar way? The honest answer is that we do not know. But, rather than admit this lack of knowledge, the Supreme Court created a reason from statutory construction principles. The Court stated that Congress’ failure to amend the ADEA was intentional. It further explained that the intent was to differentiate the ADEA from Title VII. But, this statement is merely a guess by the Court.

There are lots of credible ways to explain Congress’ behavior. Given the complex nature of the 1991 amendments to Title VII, it is very possible that Congress forgot about making similar amendments to the ADEA or did not have the time or ability to consider how the amendments would affect the ADEA. It also is possible that Congress intended for the Price Waterhouse standard to continue governing ADEA cases. Another option is that Congress wanted the courts to separately evaluate the ADEA.

Any one of these options is possible, and it is not a favor to history for the Court to choose among them with no evidence to support its choice. The only thing we know for sure is that Congress did not amend the ADEA. Gross would have been a much stronger decision if it had admitted this fact without inferring any further congressional intent from it. Instead, the Court inserts a fallacy into the history of federal discrimination law by creating a congressional intent to differentiate the ADEA from Title VII.

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