Causation, Part 18 (Gross)

In Gross, the Supreme Court made an unnecessary guess about what Congress intended when it amended Title VII in 1991, but did not make similar amendments to the ADEA. As we will discuss in later posts, this guess gains greater power when the Court recycles it in later cases like Nassar.

The Supreme Court’s guess hides the choices the Court is making. Gross reads as if the Court is merely following congressional intent, an intent to differentiate the way causation works in Title VII and the ADEA. What is really happening, though, is much more interesting. Faced with unknown congressional intent, the Court itself made powerful choices about which way to interpret the ADEA.

I am not arguing that the Supreme Court should not make choices about how to interpret statutes. This is one of the important functions of federal courts. What I am critiquing in this post is the Court’s need to hide the fact that it is making choices. Gross would be a much more compelling and accurate opinion if it simply admitted the Court’s choices.

That more forthright opinion would go something like this. Congress added the motivating factor amendments to Title VII in 1991. It did not similarly amend the ADEA. We do not know what Congress intended when it did not amend the ADEA. Here are the possible choices. Faced with this ambiguity, we must choose among them.

The problem for this more forthright approach is that it is harder for the Court to reach “but for” cause as the outcome without addressing Price Waterhouse. In Price Waterhouse, the Court interpreted Title VII’s “because of” language to allow motivating factor causation. Congress borrowed from Title VII’s language when it created the ADEA. The ADEA uses the exact same “because of” language as Title VII. Through the 1991 amendments to Title VII, Congress reaffirmed that the Price Waterhouse Court interpreted Title VII correctly. And, even without these amendments, the “because of” language in Title VII would still be interpreted as allowing a motivating factor analysis. The only thing the 1991 amendments changed in the motivating factor analysis was the effect of the employer’s proof of the affirmative defense.

Without the “guess” about congressional intent, the Gross Court would either have to overrule Price Waterhouse or make a different argument about why it does not apply in the ADEA context. The Court was unwilling to overrule Price Waterhouse. And it was unable to credibly make an argument that Price Waterhouse does not apply to the ADEA.

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