Gross introduced many problems and questions into discrimination law. Even though Title VII and the ADEA use the exact same “because of” language, this language now means one thing for Title VII discrimination claims and has a different meaning for ADEA claims. A Title VII discrimination plaintiff can use the “motivating factor” language to define “because of,” while the ADEA plaintiff must establish “but for” cause.
In cases involving age and an additional protected trait, it is unclear how courts should proceed. Say, for example, that an older woman alleges that she was treated differently both because of her age and her sex. It is unclear what causal standard a court should apply. Should the court apply a motivating factor standard for the sex claim, but a higher “but for” standard for the age claim? If so, how does this practically work?
Gross raises many issues for state law. Many state discrimination statutes prohibit discrimination for all protected classes within one statute. This is unlike the federal statutes, which have separate statutes for age and disability discrimination. Many state discrimination statutes also are construed in line with federal law. However, Gross introduces a new wrinkle. To continue to read these state statutes in line with federal law, the courts will have to construe the state statute to have different meanings, even though the same provision governs both age discrimination and other forms of discrimination. Since Gross relies on a twisted interpretation of the relationship between Title VII, the ADEA, Price Waterhouse, and the 1991 amendments to Title VII, it also is unclear whether Gross should apply to state statutes that do not share that same history.
Finally, Gross raises the causation question for every federal discrimination or related statute. Thus, litigants are now asking whether the Family Medical Leave Act and the Americans with Disabilities Act require “but for” cause. After Gross, litigants asked the same question for Title VII retaliation claims (more on Nassar later).