In Part III of Gross, Justice Thomas finally admits what the real issue is. He admits: “In any event, it is far from clear that the Court would have the same approach [the approach used in Price Waterhouse] were it to consider the question today in the first instance.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178-79 (2009). A majority of the Court in Gross disagreed with a majority of the Court in Price Waterhouse.
Here is where the real reasoning lies. The Court preferred one causation standard over another, and it preferred the standard that made it easier for employers to win cases and made it harder for workers to win them. The Court did not alter ADEA causation because of some special connection between the ADEA and tort law. Tort law did not command the use of a “but for” cause standard. Nonetheless, because the Court had to justify its move away from Price Waterhouse, discrimination law is now left with a bigger dilemma than the one posed by causation. In future posts, I will describe the increasing use of tort law in discrimination cases, a move that was greatly enhanced by Gross.