Gross is one of the worst reasoned cases in employment discrimination jurisprudence. I want to be careful in explaining what I mean by this. I do not mean that there are not ways to reason to the Court’s ultimate holding in the case. Rather, the reasons that the Court chose do not properly support its holding. The Court’s reasoning unnecessarily complicates employment discrimination law and oversimplifies causation analysis, as we will see when we examine the Nassar decision. In the next few posts, I will discuss the most problematic aspects of the Gross decision.
The first problem with Gross is that it mischaracterizes the relationship between Title VII, the ADEA, Price Waterhouse and the 1991 amendments to Title VII. History is important here, as is the structure of Title VII and the ADEA. This history and structure get complicated, so I appreciate your patience as I break it down piece by piece.
Title VII is enacted in 1964. Title VII has a primary operative provision, which is codified at 42 U.S.C. § 2000e-2(a). That subsection provides as follows:
(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
It is the “because of” language in this subsection that the Court interpreted in Price Waterhouse. Just three years after it enacted Title VII, Congress chose to use the exact same “because of” language from Title VII in the ADEA. The main language of the ADEA, found at 29 U.S.C. § 623(a) is as follows:
(a) Employer practices
It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age. . . .
In Price Waterhouse, the Court interpreted the meaning of those words “because of.” A majority of the Court held that those words meant that the plaintiff can prevail on a claim by establishing that a protected trait played a motivating factor in an adverse decision. Congress used the exact same words in the ADEA and these words should have the same meaning as they do under Title VII.
If Gross were decided prior to the 1991 amendments to Title VII, it is clear that Price Waterhouse’s MAJORITY opinion about the substantive standard would have applied to the ADEA. The question then becomes how the 1991 amendments to Title VII should affect the ADEA causation analysis.
Structure is important. In the 1991 amendments, Congress did not choose to amend the main operative provision of Title VII. Rather, it added a new definitional subsection to the statute. That definitional subsection is found at 42 U.S.C. § 2000e-2(m). It provides as follows:
(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
This subsection simply reaffirms the Price Waterhouse majority that a plaintiff can establish a violation under Title VII by showing a protected trait was a motivating factor in an employment decision. Subsection (m) is simply approving the motivating factor analysis in Price Waterhouse. Without subsection (m), Title VII would still use the motivating factor analysis for discrimination claims. We would just look to Price Waterhouse for that standard, rather than the statutory language.
Subsection (m) does not create a new cause of action or add a new “claim” under Title VII. The Supreme Court clarified this later in its Nassar decision. In Nassar, the Supreme Court noted: “For one thing, § 2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.”
So, to summarize. Congress used the exact same “because of language” in Title VII and the ADEA. In Price Waterhouse, the Supreme Court interpreted that language to allow a motivating factor causation analysis. In the 1991 amendments to Title VII, Congress affirmed that the Price Waterhouse Court was correct when it used motivating factor analysis in Title VII.
Both Congress and the Price Waterhouse Court agreed that the meaning of the words “because of” in Title VII meant “motivating factor.” Congress’ uses the same “because of” language in the ADEA. “Because of” under the ADEA should mean exactly the same thing as “because of” under Title VII.
But, as I will discuss in the next post, Congress’ approval of Price Waterhouse was not complete approval. And this is where the analysis starts to get trickier.