(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

GROSS v. FBL FINANCIAL SERVICES, INC. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

No. 08–441. Argued March 31, 2009—Decided June 18, 2009 

Petitioner Gross filed suit, alleging that respondent (FBL) demoted him

in violation of the Age Discrimination in Employment Act of 1967

(ADEA), which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age,” 29 

U. S. C. §623(a). At the close of trial, and over FBL’s objections, the

District Court instructed the jury to enter a verdict for Gross if he 

proved, by a preponderance of the evidence, that he was demoted and

his age was a motivating factor in the demotion decision, and told the

jury that age was a motivating factor if it played a part in the demotion. It also instructed the jury to return a verdict for FBL if it 

proved that it would have demoted Gross regardless of age. The jury

returned a verdict for Gross. The Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U. S. 228, for cases under Title VII of the Civil Rights Act of

1964 when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed-motives” case. 

Held: A plaintiff bringing an ADEA disparate-treatment claim must

prove, by a preponderance of the evidence, that age was the “but-for” 

cause of the challenged adverse employment action. The burden of 

persuasion does not shift to the employer to show that it would have 

taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Pp. 4–12. 

(a) Because Title VII is materially different with respect to the

relevant burden of persuasion, this Court’s interpretation of the 

ADEA is not governed by Title VII decisions such as Price Water-
2 GROSS v. FBL FINANCIAL SERVICES, INC. 

Syllabus 

house and Desert Palace, Inc. v. Costa, 539 U. S. 90, 94–95. This 

Court has never applied Title VII’s burden-shifting framework to

ADEA claims and declines to do so now. When conducting statutory 

interpretation, the Court “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U. S. ___, 

___. Unlike Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was “a 

motivating factor” for the adverse action, see 42 U. S. C. §§2000e–

2(m) and 2000e–5(g)(2)(B), the ADEA does not provide that a plaintiff

may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision 

to the ADEA when it added §§2000e–2(m) and 2000e–5(g)(2)(B) to Title VII, even though it contemporaneously amended the ADEA in

several ways. When Congress amends one statutory provision but 

not another, it is presumed to have acted intentionally, see EEOC v. 

Arabian American Oil Co., 499 U. S. 244, 256, and “negative implications raised by disparate provisions are strongest” where the provisions were “considered simultaneously when the language raising the 

implication was inserted,” Lindh v. Murphy, 521 U. S. 320, 330. 

Pp. 5–6.

(b) The ADEA’s text does not authorize an alleged mixed-motives

age discrimination claim. The ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is 

that age was the “reason” that the employer decided to act. See 

Hazen Paper Co. v. Biggins, 507 U. S. 604, 610. To establish a disparate-treatment claim under this plain language, a plaintiff must

prove that age was the “but-for” cause of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. ___, 

___. It follows that under §623(a)(1), the plaintiff retains the burden 

of persuasion to establish that “but-for” cause. This Court has previously held this to be the burden’s proper allocation in ADEA cases, 

see, e.g., Kentucky Retirement Systems v. EEOC, 554 U. S. ___, ___– 

___, ___–___, and nothing in the statute’s text indicates that Congress 

has carved out an exception for a subset of ADEA cases. Where a 

statute is “silent on the allocation of the burden of persuasion,” “the

ordinary default rule [is] that plaintiffs bear the risk of failing to

prove their claims.” Schaffer v. Weast, 546 U. S. 49, 56. Hence, the 

burden of persuasion is the same in alleged mixed-motives cases as in 

any other ADEA disparate-treatment action. Pp. 7–9.

(c) This Court rejects petitioner’s contention that the proper interpretation of the ADEA is nonetheless controlled by Price Waterhouse, 

which initially established that the burden of persuasion shifted in

alleged mixed-motives Title VII claims. It is far from clear that the 
Cite as: 557 U. S. ____ (2009) 3 

Syllabus 

Court would have the same approach were it to consider the question

today in the first instance. Whatever Price Waterhouse’s deficiencies 

in retrospect, it has become evident in the years since that case was

decided that its burden-shifting framework is difficult to apply. The 

problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47. Pp. 10–11. 

526 F. 3d 356, vacated and remanded. 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a 

dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., 

joined. BREYER, J., filed a dissenting opinion, in which SOUTER and 

GINSBURG, JJ., joined. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 08–441 

JACK GROSS, PETITIONER v. FBL FINANCIAL 

SERVICES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT

[June 18, 2009] 

JUSTICE THOMAS delivered the opinion of the Court. 

The question presented by the petitioner in this case is

whether a plaintiff must present direct evidence of age 

discrimination in order to obtain a mixed-motives jury

instruction in a suit brought under the Age Discrimination 

in Employment Act of 1967 (ADEA), 81 Stat. 602, as 

amended, 29 U. S. C. §621 et seq. Because we hold that 

such a jury instruction is never proper in an ADEA case,

we vacate the decision below. 

I 

Petitioner Jack Gross began working for respondent

FBL Financial Group, Inc. (FBL), in 1971. As of 2001, 

Gross held the position of claims administration director.

But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At 

that same time, FBL transferred many of Gross’ job responsibilities to a newly created position—claims administration manager. That position was given to Lisa

Kneeskern, who had previously been supervised by Gross 

and who was then in her early forties. App. to Pet. for

Cert. 23a (District Court opinion). Although Gross (in his 
2 GROSS v. FBL FINANCIAL SERVICES, INC. 

Opinion of the Court 

new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL’s reallocation of his former job responsibilities to Kneeskern. 

In April 2004, Gross filed suit in District Court, alleging 

that his reassignment to the position of claims project 

coordinator violated the ADEA, which makes it unlawful 

for an employer to take adverse action against an employee “because of such individual’s age.” 29 U. S. C. 

§623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was 

based at least in part on his age. FBL defended its decision on the grounds that Gross’ reassignment was part of 

a corporate restructuring and that Gross’ new position was

better suited to his skills. See App. to Pet. for Cert. 23a 

(District Court opinion). 

At the close of trial, and over FBL’s objections, the

District Court instructed the jury that it must return a 

verdict for Gross if he proved, by a preponderance of the

evidence, that FBL “demoted [him] to claims projec[t] 

coordinator” and that his “age was a motivating factor” in

FBL’s decision to demote him. App. 9–10. The jury was

further instructed that Gross’ age would qualify as a 

“‘motivating factor,’ if [it] played a part or a role in [FBL]’s

decision to demote [him].” Id., at 10. The jury was also

instructed regarding FBL’s burden of proof. According to

the District Court, the “verdict must be for [FBL] . . . if it 

has been proved by the preponderance of the evidence that

[FBL] would have demoted [Gross] regardless of his age.” 

Ibid. The jury returned a verdict for Gross, awarding him

$46,945 in lost compensation. Id., at 8. 

FBL challenged the jury instructions on appeal. The 

United States Court of Appeals for the Eighth Circuit 

reversed and remanded for a new trial, holding that the 

jury had been incorrectly instructed under the standard

established in Price Waterhouse v. Hopkins, 490 U. S. 228 
Cite as: 557 U. S. ____ (2009) 3 

Opinion of the Court 

(1989). See 526 F. 3d 356, 358 (2008). In Price Waterhouse, this Court addressed the proper allocation of the 

burden of persuasion in cases brought under Title VII of 

the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 

U. S. C. §2000e et seq., when an employee alleges that he

suffered an adverse employment action because of both

permissible and impermissible considerations—i.e., a 

“mixed-motives” case. 490 U. S., at 232, 244–247 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion, see id., at 

231–258, Justices White and O’Connor separately concurred in the judgment, see id., at 258–261 (opinion of 

White, J.); id., at 261–279 (opinion of O’Connor, J.), and 

three Justices dissented, see id., at 279–295 (opinion of 

KENNEDY, J.). Six Justices ultimately agreed that if a 

Title VII plaintiff shows that discrimination was a “motivating” or a “ ‘substantial’” factor in the employer’s action,

the burden of persuasion should shift to the employer to

show that it would have taken the same action regardless

of that impermissible consideration. See id., at 258 (plurality opinion); id., at 259–260 (opinion of White, J.); id., 

at 276 (opinion of O’Connor, J.). Justice O’Connor further 

found that to shift the burden of persuasion to the employer, the employee must present “direct evidence that an

illegitimate criterion was a substantial factor in the [employment] decision.” Id., at 276. 

In accordance with Circuit precedent, the Court of Appeals identified Justice O’Connor’s opinion as controlling. 

See 526 F. 3d, at 359 (citing Erickson v. Farmland Industries, Inc., 271 F. 3d 718, 724 (CA8 2001)). Applying that

standard, the Court of Appeals found that Gross needed to 

present “[d]irect evidence . . . sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.”

526 F. 3d, at 359 (internal quotation marks omitted). In 

the Court of Appeals’ view, “direct evidence” is only that 
4 GROSS v. FBL FINANCIAL SERVICES, INC. 

Opinion of the Court 

evidence that “show[s] a specific link between the alleged 

discriminatory animus and the challenged decision.” Ibid. 

(internal quotation marks omitted). Only upon a presentation of such evidence, the Court of Appeals held, should

the burden shift to the employer “‘to convince the trier of

fact that it is more likely than not that the decision would 

have been the same absent consideration of the illegitimate factor.’” Ibid. (quoting Price Waterhouse, supra, at 

276 (opinion of O’Connor, J.)). 

The Court of Appeals thus concluded that the District

Court’s jury instructions were flawed because they allowed 

the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age

was a motivating factor—not just “direct evidence” related 

to FBL’s alleged consideration of age. See 526 F. 3d, at 

360. Because Gross conceded that he had not presented 

direct evidence of discrimination, the Court of Appeals

held that the District Court should not have given the 

mixed-motives instruction. Ibid. Rather, Gross should 

have been held to the burden of persuasion applicable to

typical, non-mixed-motives claims; the jury thus should

have been instructed only to determine whether Gross had

carried his burden of “prov[ing] that age was the determining factor in FBL’s employment action.” See ibid. 

We granted certiorari, 555 U. S. ___ (2008), and now 

vacate the decision of the Court of Appeals. 

II 

The parties have asked us to decide whether a plaintiff

must “present direct evidence of discrimination in order to

obtain a mixed-motive instruction in a non-Title VII discrimination case.” Pet. for Cert. i. Before reaching this

question, however, we must first determine whether the 

burden of persuasion ever shifts to the party defending an 

alleged mixed-motives discrimination claim brought under 
Cite as: 557 U. S. ____ (2009) 5 

Opinion of the Court 

the ADEA.1 We hold that it does not. 

A 

Petitioner relies on this Court’s decisions construing

Title VII for his interpretation of the ADEA. Because 

Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not 

control our construction of the ADEA. 

In Price Waterhouse, a plurality of the Court and two

Justices concurring in the judgment determined that once 

a “plaintiff in a Title VII case proves that [the plaintiff’s 

membership in a protected class] played a motivating part

in an employment decision, the defendant may avoid a 

finding of liability only by proving by a preponderance of 

the evidence that it would have made the same decision 

even if it had not taken [that factor] into account.” 490

U. S., at 258; see also id., at 259–260 (opinion of White,

J.); id., at 276 (opinion of O’Connor, J.). But as we explained in Desert Palace, Inc. v. Costa, 539 U. S. 90, 94–95 

(2003), Congress has since amended Title VII by explicitly

authorizing discrimination claims in which an improper

consideration was “a motivating factor” for an adverse 

employment decision. See 42 U. S. C. §2000e–2(m) (providing that “an unlawful employment practice is established when the complaining party demonstrates that 

—————— 

1Although the parties did not specifically frame the question to include this threshold inquiry, “[t]he statement of any question presented

is deemed to comprise every subsidiary question fairly included 

therein.” This Court’s Rule 14.1; see also City of Sherrill v. Oneida 

Indian Nation of N. Y., 544 U. S. 197, 214, n. 8 (2005) (“ ‘Questions not 

explicitly mentioned but essential to the analysis of the decisions below 

or to the correct disposition of the other issues have been treated as 

subsidiary issues fairly comprised by the question presented’ ” (quoting

R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 

414 (8th ed. 2002))); Ballard v. Commissioner, 544 U. S. 40, 46–47, and 

n. 2 (2005) (evaluating “a question anterior” to the “questions the 

parties raised”). 
6 GROSS v. FBL FINANCIAL SERVICES, INC. 

Opinion of the Court 

race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other

factors also motivated the practice” (emphasis added));

§2000e–5(g)(2)(B) (restricting the remedies available to 

plaintiffs proving violations of §2000e–2(m)). 

This Court has never held that this burden-shifting

framework applies to ADEA claims. And, we decline to do 

so now. When conducting statutory interpretation, we

“must be careful not to apply rules applicable under one 

statute to a different statute without careful and critical 

examination.” Federal Express Corp. v. Holowecki, 552 

U. S. ___, ___ (2008) (slip op., at 2). Unlike Title VII, the 

ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a

motivating factor. Moreover, Congress neglected to add

such a provision to the ADEA when it amended Title VII

to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it

contemporaneously amended the ADEA in several ways, 

see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., 

§302, at 1088.

We cannot ignore Congress’ decision to amend Title

VII’s relevant provisions but not make similar changes to 

the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co., 499 

U. S. 244, 256 (1991). Furthermore, as the Court has 

explained, “negative implications raised by disparate 

provisions are strongest” when the provisions were “considered simultaneously when the language raising the

implication was inserted.” Lindh v. Murphy, 521 U. S. 

320, 330 (1997). As a result, the Court’s interpretation of

the ADEA is not governed by Title VII decisions such as 

Desert Palace and Price Waterhouse.2 

—————— 

2 JUSTICE STEVENS argues that the Court must incorporate its past 

interpretations of Title VII into the ADEA because “the substantive 
Cite as: 557 U. S. ____ (2009) 7 

Opinion of the Court 

B 

Our inquiry therefore must focus on the text of the

ADEA to decide whether it authorizes a mixed-motives 

age discrimination claim. It does not. “Statutory construction must begin with the language employed by 

Congress and the assumption that the ordinary meaning 

of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality 

Management Dist., 541 U. S. 246, 252 (2004) (internal 

quotation marks omitted). The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer . . . 

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.” 29 

U. S. C. §623(a)(1) (emphasis added).

The words “because of” mean “by reason of: on account 

of.” 1 Webster’s Third New International Dictionary 194 

(1966); see also 1 Oxford English Dictionary 746 (1933) 

—————— 

provisions of the ADEA were derived in haec verba from Title VII,” post, 

at 4 (dissenting opinion) (internal quotation marks omitted), and

because the Court has frequently applied its interpretations of Title VII 

to the ADEA, see post, at 4–6. But the Court’s approach to interpreting

the ADEA in light of Title VII has not been uniform. In General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 (2004), for example, 

the Court declined to interpret the phrase “because of . . . age” in 29 

U. S. C. §623(a) to bar discrimination against people of all ages, even

though the Court had previously interpreted “because of . . . race [or]

sex” in Title VII to bar discrimination against people of all races and

both sexes, see 540 U. S., at 584, 592, n. 5. And the Court has not 

definitively decided whether the evidentiary framework of McDonnell 

Douglas Corp. v. Green, 411 U. S. 792 (1973), utilized in Title VII cases

is appropriate in the ADEA context. See Reeves v. Sanderson Plumbing 

Products, Inc., 530 U. S. 133, 142 (2000); O’Connor v. Consolidated Coin 

Caterers Corp., 517 U. S. 308, 311 (1996). In this instance, it is the 

textual differences between Title VII and the ADEA that prevent us 

from applying Price Waterhouse and Desert Palace to federal age 

discrimination claims. 
8 GROSS v. FBL FINANCIAL SERVICES, INC. 

Opinion of the Court 

(defining “because of” to mean “By reason of, on account 

of” (italics in original)); The Random House Dictionary of 

the English Language 132 (1966) (defining “because” to

mean “by reason; on account”). Thus, the ordinary meaning of the ADEA’s requirement that an employer took

adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper 

Co. v. Biggins, 507 U. S. 604, 610 (1993) (explaining that 

the claim “cannot succeed unless the employee’s protected 

trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the 

outcome” (emphasis added)). To establish a disparatetreatment claim under the plain language of the ADEA,

therefore, a plaintiff must prove that age was the “but-for” 

cause of the employer’s adverse decision. See Bridge v. 

Phoenix Bond & Indemnity Co., 553 U. S. ___, ___ (2008)

(slip op., at 14) (recognizing that the phrase, “by reason

of,” requires at least a showing of “but for” causation 

(internal quotation marks omitted)); Safeco Ins. Co. of 

America v. Burr, 551 U. S. 47, 63–64, and n. 14 (2007) 

(observing that “[i]n common talk, the phrase ‘based on’ 

indicates a but-for causal relationship and thus a necessary logical condition” and that the statutory phrase, 

“based on,” has the same meaning as the phrase, “because 

of” (internal quotation marks omitted)); cf. W. Keeton, D.

Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law 

of Torts 265 (5th ed. 1984) (“An act or omission is not 

regarded as a cause of an event if the particular event 

would have occurred without it”).3 

—————— 

3 JUSTICE BREYER contends that there is “nothing unfair or impractical” about hinging liability on whether “forbidden motive . . . play[ed] a

role in the employer’s decision.” Post, at 2–3 (dissenting opinion). But 

that is a decision for Congress to make. See Florida Dept. of Revenue v. 

Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 18). 

Congress amended Title VII to allow for employer liability when 

discrimination “was a motivating factor for any employment practice, 
Cite as: 557 U. S. ____ (2009) 9 

Opinion of the Court 

It follows, then, that under §623(a)(1), the plaintiff 

retains the burden of persuasion to establish that age was 

the “but-for” cause of the employer’s adverse action. Indeed, we have previously held that the burden is allocated 

in this manner in ADEA cases. See Kentucky Retirement 

Systems v. EEOC, 554 U. S. ___, ___–___, ___–___ (2008) 

(slip op., at 2–4, 11–13); Reeves v. Sanderson Plumbing 

Products, Inc., 530 U. S. 133, 141, 143 (2000). And nothing in the statute’s text indicates that Congress has carved

out an exception to that rule for a subset of ADEA cases. 

Where the statutory text is “silent on the allocation of the

burden of persuasion,” we “begin with the ordinary default 

rule that plaintiffs bear the risk of failing to prove their 

claims.” Schaffer v. Weast, 546 U. S. 49, 56 (2005); see 

also Meacham v. Knolls Atomic Power Laboratory, 554 

U. S. ___, ___ (2008) (slip op., at 6) (“Absent some reason 

to believe that Congress intended otherwise, . . . we will

conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief” (internal quotation marks omitted)). We have no warrant to depart from 

the general rule in this setting. 

Hence, the burden of persuasion necessary to establish 

employer liability is the same in alleged mixed-motives

cases as in any other ADEA disparate-treatment action. A 

plaintiff must prove by a preponderance of the evidence 

(which may be direct or circumstantial), that age was the 

“but-for” cause of the challenged employer decision. See 

Reeves, supra, at 141–143, 147.4 

—————— 

even though other factors also motivated the practice,” 42 U. S. C. 

§2000e–2(m) (emphasis added), but did not similarly amend the ADEA, 

see supra, at 5–6. We must give effect to Congress’ choice. See 14 Penn 

Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 21). 4Because we hold that ADEA plaintiffs retain the burden of persuasion to prove all disparate-treatment claims, we do not need to address

whether plaintiffs must present direct, rather than circumstantial, 

evidence to obtain a burden-shifting instruction. There is no height-
10 GROSS v. FBL FINANCIAL SERVICES, INC. 

Opinion of the Court 

III 

Finally, we reject petitioner’s contention that our interpretation of the ADEA is controlled by Price Waterhouse, 

which initially established that the burden of persuasion

shifted in alleged mixed-motives Title VII claims.5 In any

event, it is far from clear that the Court would have the 

same approach were it to consider the question today in

the first instance. Cf. 14 Penn Plaza LLC v. Pyett, 556 

U. S. ___, ___ (2009) (slip op., at 21) (declining to “introduc[e] a qualification into the ADEA that is not found in

its text”); Meacham, supra, at ___ (slip op., at 16) (explaining that the ADEA must be “read . . . the way Congress 

wrote it”). 

—————— 

ened evidentiary requirement for ADEA plaintiffs to satisfy their

burden of persuasion that age was the “but-for” cause of their employer’s adverse action, see 29 U. S. C. §623(a), and we will imply none. 

“Congress has been unequivocal when imposing heightened proof

requirements” in other statutory contexts, including in other subsections within Title 29, when it has seen fit. See Desert Palace, Inc. v. 

Costa, 539 U. S. 90, 99 (2003); see also, e.g., 25 U. S. C. §2504(b)(2)(B) 

(imposing “clear and convincing evidence” standard); 29 U. S. C. 

§722(a)(2)(A) (same). 5 JUSTICE STEVENS also contends that we must apply Price Waterhouse under the reasoning of Smith v. City of Jackson, 544 U. S. 228 

(2005). See post, at 7. In Smith, the Court applied to the ADEA its

pre-1991 interpretation of Title VII with respect to disparate-impact

claims despite Congress’ 1991 amendment adding disparate-impact

claims to Title VII but not the ADEA. 544 U. S., at 240. But the 

amendments made by Congress in this same legislation, which added

the “motivating factor” language to Title VII, undermine JUSTICE 

STEVENS’ argument. Congress not only explicitly added “motivating

factor” liability to Title VII, see supra, at 5–6, but it also partially 

abrogated Price Waterhouse’s holding by eliminating an employer’s

complete affirmative defense to “motivating factor” claims, see 42

U. S. C. §2000e–5(g)(2)(B). If such “motivating factor” claims were

already part of Title VII, the addition of §2000e–5(g)(2)(B) alone would

have been sufficient. Congress’ careful tailoring of the “motivating 

factor” claim in Title VII, as well as the absence of a provision parallel 

to §2000e–2(m) in the ADEA, confirms that we cannot transfer the 

Price Waterhouse burden-shifting framework into the ADEA. 
Cite as: 557 U. S. ____ (2009) 11 

Opinion of the Court 

Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case 

was decided that its burden-shifting framework is difficult 

to apply. For example, in cases tried to a jury, courts have

found it particularly difficult to craft an instruction to

explain its burden-shifting framework. See, e.g., Tyler v. 

Bethlehem Steel Corp., 958 F. 2d 1176, 1179 (CA2 1992) 

(referring to “the murky water of shifting burdens in

discrimination cases”); Visser v. Packer Engineering Associates, Inc., 924 F. 2d 655, 661 (CA7 1991) (en banc) 

(Flaum, J., dissenting) (“The difficulty judges have in

formulating [burden-shifting] instructions and jurors have

in applying them can be seen in the fact that jury verdicts

in ADEA cases are supplanted by judgments notwithstanding the verdict or reversed on appeal more frequently

than jury verdicts generally”). Thus, even if Price Waterhouse was doctrinally sound, the problems associated with

its application have eliminated any perceivable benefit to 

extending its framework to ADEA claims. Cf. Continental 

T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47 (1977) 

(reevaluating precedent that was subject to criticism

and “continuing controversy and confusion”); Payne v. 

Tennessee, 501 U. S. 808, 839–844 (1991) (SOUTER, J., 

concurring).6 

—————— 

6Gross points out that the Court has also applied a burden-shifting

framework to certain claims brought in contexts other than pursuant to

Title VII. See Brief for Petitioner 54–55 (citing, inter alia, NLRB v. 

Transportation Management Corp., 462 U. S. 393, 401–403 (1983) 

(claims brought under the National Labor Relations Act (NLRA)); Mt. 

Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (constitutional claims)). These cases, however, do not require the Court to adopt

his contra statutory position. The case involving the NLRA did not

require the Court to decide in the first instance whether burden shifting should apply as the Court instead deferred to the National Labor 

Relation Board’s determination that such a framework was appropriate. See NLRB, supra, at 400–403. And the constitutional cases such 

as Mt. Healthy have no bearing on the correct interpretation of ADEA 
12 GROSS v. FBL FINANCIAL SERVICES, INC. 

Opinion of the Court 

IV 

We hold that a plaintiff bringing a disparate-treatment 

claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of 

the challenged adverse employment action. The burden of 

persuasion does not shift to the employer to show that it

would have taken the action regardless of age, even when

a plaintiff has produced some evidence that age was one 

motivating factor in that decision. Accordingly, we vacate

the judgment of the Court of Appeals and remand the case

for further proceedings consistent with this opinion. 

It is so ordered. 

—————— 

claims, which are governed by statutory text. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

STEVENS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–441 

JACK GROSS, PETITIONER v. FBL FINANCIAL 

SERVICES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT

[June 18, 2009] 

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE 

GINSBURG, and JUSTICE BREYER join, dissenting. 

The Age Discrimination in Employment Act of 1967

(ADEA), 29 U. S. C. §621 et seq., makes it unlawful for an 

employer to discriminate against any employee “because 

of” that individual’s age, §623(a). The most natural reading of this statutory text prohibits adverse employment 

actions motivated in whole or in part by the age of the

employee. The “but-for” causation standard endorsed by 

the Court today was advanced in JUSTICE KENNEDY’s 

dissenting opinion in Price Waterhouse v. Hopkins, 490 

U. S. 228, 279 (1989), a case construing identical language

in Title VII of the Civil Rights Act of 1964, 42 U. S. C.

§2000e–2(a)(1). Not only did the Court reject the but-for 

standard in that case, but so too did Congress when it

amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its 

own initiative, to adopt an interpretation of the causation

requirement in the ADEA that differs from the established

reading of Title VII. I disagree not only with the Court’s

interpretation of the statute, but also with its decision to

engage in unnecessary lawmaking. I would simply answer

the question presented by the certiorari petition and hold

that a plaintiff need not present direct evidence of age 

discrimination to obtain a mixed-motives instruction. 
2 GROSS v. FBL FINANCIAL SERVICES, INC. 

STEVENS, J., dissenting 

I 

The Court asks whether a mixed-motives instruction is 

ever appropriate in an ADEA case. As it acknowledges, 

this was not the question we granted certiorari to decide.1 

Instead, the question arose for the first time in respondent’s brief, which asked us to “overrule Price Waterhouse 

with respect to its application to the ADEA.” Brief for 

Respondent 26 (boldface type deleted). In the usual 

course, this Court would not entertain such a request

raised only in a merits brief: “‘We would normally expect 

notice of an intent to make so far-reaching an argument in

the respondent’s opposition to a petition for certiorari, cf.

this Court’s Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.’” Alabama v. Shelton, 535 U. S. 654, 660, n. 3 (2002) 

(quoting South Central Bell Telephone Co. v. Alabama, 

526 U. S. 160, 171 (1999)). Yet the Court is unconcerned 

that the question it chooses to answer has not been briefed 

by the parties or interested amici curiae. Its failure to 

consider the views of the United States, which represents 

the agency charged with administering the ADEA, is 

especially irresponsible.2 

Unfortunately, the majority’s inattention to prudential

Court practices is matched by its utter disregard of our

precedent and Congress’ intent. The ADEA provides that

“[i]t shall be unlawful for an employer . . . to fail or refuse 

to hire or to discharge any individual or otherwise discriminate against any individual with respect to his com-

—————— 

1 “The question presented by the petitioner in this case is whether a

plaintiff must present direct evidence of age discrimination in order to

obtain a mixed-motives jury instruction in a suit brought under the 

[ADEA].” Ante, at 1. 2The United States filed an amicus curiae brief supporting petitioner 

on the question presented. At oral argument, the Government urged 

that the Court should not reach the issue it takes up today. See Tr. of 

Oral Arg. 20–21, 28–29. 
Cite as: 557 U. S. ____ (2009) 3 

STEVENS, J., dissenting 

pensation, terms, conditions, or privileges of employment, 

because of such individual’s age.” 29 U. S. C. §623(a)(1) 

(emphasis added). As we recognized in Price Waterhouse 

when we construed the identical “because of” language of 

Title VII, see 42 U. S. C. §2000e–2(a)(1) (making it unlawful for an employer “to fail or refuse to hire or to discharge

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” (emphasis added)), the most natural reading of the

text proscribes adverse employment actions motivated in

whole or in part by the age of the employee. 

In Price Waterhouse, we concluded that the words “‘because of’ such individual’s . . . sex . . . mean that gender 

must be irrelevant to employment decisions.” 490 U. S., at 

240 (plurality opinion); see also id., at 260 (White, J., 

concurring in judgment). To establish a violation of Title 

VII, we therefore held, a plaintiff had to prove that her sex 

was a motivating factor in an adverse employment decision.3 We recognized that the employer had an affirmative

defense: It could avoid a finding of liability by proving that 

it would have made the same decision even if it had not 

taken the plaintiff’s sex into account. Id., at 244–245 

(plurality opinion). But this affirmative defense did not 

alter the meaning of “because of.” As we made clear, when 

“an employer considers both gender and legitimate factors

at the time of making a decision, that decision was ‘be-

—————— 

3Although Justice White stated that the plaintiff had to show that

her sex was a “substantial” factor, while the plurality used the term

“motivating” factor, these standards are interchangeable, as evidenced

by Justice White’s quotation of Mt. Healthy City Bd. of Ed. v. Doyle, 429 

U. S. 274, 287 (1977): “ ‘[T]he burden was properly placed upon [the

plaintiff to show that the illegitimate criterion] was a “substantial

factor”—or, to put it in other words, that it was a “motivating factor” ’ ” 

in the adverse decision. Price Waterhouse, 490 U. S., at 259 (emphasis 

added); see also id., at 249 (plurality opinion) (using “substantial” and

“motivating” interchangeably). 
4 GROSS v. FBL FINANCIAL SERVICES, INC. 

STEVENS, J., dissenting 

cause of’ sex.” Id., at 241; see also id., at 260 (White, J., 

concurring in judgment). We readily rejected the dissent’s 

contrary assertion. “To construe the words ‘because of’ as 

colloquial shorthand for ‘but-for’ causation,” we said, “is to

misunderstand them.” Id., at 240 (plurality opinion).4 

Today, however, the Court interprets the words “because of” in the ADEA “as colloquial shorthand for ‘but-for’ 

causation.” Ibid. That the Court is construing the ADEA

rather than Title VII does not justify this departure from

precedent. The relevant language in the two statutes is 

identical, and we have long recognized that our interpretations of Title VII’s language apply “with equal force in the 

context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title 

VII.’” Trans World Airlines, Inc. v. Thurston, 469 U. S. 

111, 121 (1985) (quoting Lorillard v. Pons, 434 U. S. 575, 

584 (1978)). See generally Northcross v. Board of Ed. of 

Memphis City Schools, 412 U. S. 427, 428 (1973) (per 

curiam). For this reason, JUSTICE KENNEDY’s dissent in 

Price Waterhouse assumed the plurality’s mixed-motives

framework extended to the ADEA, see 490 U. S., at 292, 

and the Courts of Appeals to have considered the issue

unanimously have applied Price Waterhouse to ADEA 

claims.5 

—————— 

4We were no doubt aware that dictionaries define “because of” as “by

reason of” or “on account of.” Ante, at 7–8. Contrary to the majority’s 

bald assertion, however, this does not establish that the term denotes 

but-for causation. The dictionaries the Court cites do not, for instance, 

define “because of” as “solely by reason of” or “exclusively on account of.” 

In Price Waterhouse, we recognized that the words “because of” do not 

mean “solely because of,” and we held that the inquiry “commanded by 

the words” of the statute was whether gender was a motivating factor

in the employment decision. 490 U. S., at 241 (plurality opinion). 5See Febres v. Challenger Caribbean Corp., 214 F. 3d 57 (CA1 2000); 

Ostrowski v. Atlantic Mut. Ins. Cos., 968 F. 2d 171 (CA2 1992); 

Starceski v. Westinghouse Elec. Corp., 54 F. 3d 1089 (CA3 1995); EEOC 

v. Warfield-Rohr Casket Co., 364 F. 3d 160 (CA4 2004); Rachid v. Jack 
Cite as: 557 U. S. ____ (2009) 5 

STEVENS, J., dissenting 

The Court nonetheless suggests that applying Price 

Waterhouse would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in 

Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993), that 

“[a disparate-treatment] claim ‘cannot succeed unless the 

employee’s protected trait actually played a role in [the 

employer’s decisionmaking] process and had a determinative influence on the outcome.’” Ante, at 8. The italicized 

phrase is at best inconclusive as to the meaning of the

ADEA’s “because of” language, however, as other passages

in Hazen Paper Co. demonstrate. We also stated, for 

instance, that the ADEA “requires the employer to ignore

an employee’s age,” id., at 612 (emphasis added), and 

noted that “[w]hen the employer’s decision is wholly motivated by factors other than age,” there is no violation, id., 

at 611 (emphasis altered). So too, we indicated the “possibility of dual liability under ERISA and the ADEA where 

the decision to fire the employee was motivated both by

the employee’s age and by his pension status,” id., at 

613—a classic mixed-motives scenario. 

 Moreover, both Hazen Paper Co. and Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000), on

which the majority also relies, support the conclusion that

the ADEA should be interpreted consistently with Title

VII. In those non-mixed-motives ADEA cases, the Court 

followed the standards set forth in non-mixed-motives 

Title VII cases including McDonnell Douglas Corp. v. 

Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981). See, e.g., 

Reeves, 530 U. S., at 141–143; Hazen Paper Co., 507 U. S., 

—————— 

In The Box, Inc., 376 F. 3d 305 (CA5 2004); Wexler v. White’s Fine 

Furniture, Inc., 317 F. 3d 564 (CA6 2003); Visser v. Packer Eng. Assocs., 

Inc., 924 F. 2d 655 (CA7 1991) (en banc); Hutson v. McDonnell Douglas 

Corp., 63 F. 3d 771 (CA8 1995); Lewis v. YMCA, 208 F. 3d 1303 (CA11 

2000) (per curiam); see also Gonzagowski v. Widnall, 115 F. 3d 744, 749 

(CA10 1997). 
6 GROSS v. FBL FINANCIAL SERVICES, INC. 

STEVENS, J., dissenting 

at 610. This by no means indicates, as the majority reasons, that mixed-motives ADEA cases should follow those 

standards. Rather, it underscores that ADEA standards 

are generally understood to conform to Title VII standards. 

II 

The conclusion that “because of” an individual’s age

means that age was a motivating factor in an employment 

decision is bolstered by Congress’ reaction to Price Waterhouse in the 1991 Civil Rights Act. As part of its response 

to “a number of recent decisions by the United States 

Supreme Court that sharply cut back on the scope and 

effectiveness of [civil rights] laws,” H. R. Rep. No. 102–40, 

pt. 2, p. 2 (1991) (hereinafter H. R. Rep.), Congress eliminated the affirmative defense to liability that Price Waterhouse had furnished employers and provided instead that 

an employer’s same-decision showing would limit only a 

plaintiff’s remedies. See §2000e–5(g)(2)(B). Importantly,

however, Congress ratified Price Waterhouse’s interpretation of the plaintiff’s burden of proof, rejecting the dissent’s suggestion in that case that but-for causation was 

the proper standard. See §2000e–2(m) (“[A]n 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”).

Because the 1991 Act amended only Title VII and not 

the ADEA with respect to mixed-motives claims, the Court

reasonably declines to apply the amended provisions to 

the ADEA.6 But it proceeds to ignore the conclusion com-

—————— 

6There is, however, some evidence that Congress intended the 1991

mixed-motives amendments to apply to the ADEA as well. See H. R. 

Rep., pt. 2, at 4 (noting that a “number of other laws banning discrimination, including . . . the Age Discrimination in Employment Act 

(ADEA), 29 U. S. C. §621, et seq., are modeled after and have been 
Cite as: 557 U. S. ____ (2009) 7 

STEVENS, J., dissenting 

pelled by this interpretation of the Act: Price Waterhouse’s 

construction of “because of” remains the governing law for 

ADEA claims. 

Our recent decision in Smith v. City of Jackson, 544 

U. S. 228, 240 (2005), is precisely on point, as we considered in that case the effect of Congress’ failure to amend 

the disparate-impact provisions of the ADEA when it 

amended the corresponding Title VII provisions in the 

1991 Act. Noting that “the relevant 1991 amendments

expanded the coverage of Title VII [but] did not amend the 

ADEA or speak to the subject of age discrimination,” we 

held that “Wards Cove’s pre-1991 interpretation of Title

VII’s identical language remains applicable to the ADEA.” 

544 U. S., at 240 (discussing Wards Cove Packing Co. v. 

Atonio, 490 U. S. 642 (1989)); see also Meacham v. Knolls 

Atomic Power Laboratory, 554 U. S. ___, ___ (2008) (slip 

op., at 15). If the Wards Cove disparate-impact framework

that Congress flatly repudiated in the Title VII context

continues to apply to ADEA claims, the mixed-motives 

framework that Congress substantially endorsed surely 

applies.

Curiously, the Court reaches the opposite conclusion, 

relying on Congress’ partial ratification of Price Waterhouse to argue against that case’s precedential value. It 

reasons that if the 1991 amendments do not apply to the 

ADEA, Price Waterhouse likewise must not apply because

Congress effectively codified Price Waterhouse’s holding in

the amendments. Ante, at 5–6. This does not follow. To 

the contrary, the fact that Congress endorsed this Court’s 

interpretation of the “because of” language in Price Waterhouse (even as it rejected the employer’s affirmative de-

—————— 

interpreted in a manner consistent with Title VII,” and that “these

other laws modeled after Title VII [should] be interpreted consistently

in a manner consistent with Title VII as amended by this Act,” including the mixed-motives provisions). 
8 GROSS v. FBL FINANCIAL SERVICES, INC. 

STEVENS, J., dissenting 

fense to liability) provides all the more reason to adhere to

that decision’s motivating-factor test. Indeed, Congress

emphasized in passing the 1991 Act that the motivatingfactor test was consistent with its original intent in enacting Title VII. See, e.g., H. R. Rep., pt. 2, at 17 (“When

enacting the Civil Rights Act of 1964, Congress made clear

that it intended to prohibit all invidious consideration of 

sex, race, color, religion, or national origin in employment

decisions”); id., at 2 (stating that the Act “reaffirm[ed] that

any reliance on prejudice in making employment decisions 

is illegal”); see also H. R. Rep., pt. 1, at 45; S. Rep. No. 

101–315, pp. 6, 22 (1990).

The 1991 amendments to Title VII also provide the

answer to the majority’s argument that the mixed-motives

approach has proved unworkable. Ante, at 10–11. Because Congress has codified a mixed-motives framework

for Title VII cases—the vast majority of antidiscrimination 

lawsuits—the Court’s concerns about that framework are 

of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would 

not reach today’s decision, which will further complicate 

every case in which a plaintiff raises both ADEA and Title 

VII claims. 

The Court’s resurrection of the but-for causation standard is unwarranted. Price Waterhouse repudiated that 

standard 20 years ago, and Congress’ response to our 

decision further militates against the crabbed interpretation the Court adopts today. The answer to the question

the Court has elected to take up—whether a mixedmotives jury instruction is ever proper in an ADEA case—

is plainly yes. 

III 

Although the Court declines to address the question we

granted certiorari to decide, I would answer that question 

by following our unanimous opinion in Desert Palace, Inc. 
Cite as: 557 U. S. ____ (2009) 9 

STEVENS, J., dissenting 

v. Costa, 539 U. S. 90 (2003). I would accordingly hold

that a plaintiff need not present direct evidence of age 

discrimination to obtain a mixed-motives instruction. 

The source of the direct-evidence debate is Justice 

O’Connor’s opinion concurring in the judgment in Price 

Waterhouse. Writing only for herself, Justice O’Connor

argued that a plaintiff should be required to introduce

“direct evidence” that her sex motivated the decision 

before the plurality’s mixed-motives framework would

apply. 490 U. S., at 276.7 Many courts have treated Justice O’Connor’s opinion in Price Waterhouse as controlling 

for both Title VII and ADEA mixed-motives cases in light

of our statement in Marks v. United States, 430 U. S. 188, 

193 (1977), that “[w]hen a fragmented Court decides a

case and no single rationale explaining the result enjoys 

the assent of five Justices, ‘the holding of the Court may 

be viewed as that position taken by those Members who 

concurred in the judgments on the narrowest grounds.’ ” 

Unlike the cases Marks addressed, however, Price Waterhouse garnered five votes for a single rationale: Justice 

White agreed with the plurality as to the motivating-factor 

test, see supra, at 3, n. 3; he disagreed only as to the type 

of evidence an employer was required to submit to prove 

that the same result would have occurred absent the 

unlawful motivation. Taking the plurality to demand

objective evidence, he wrote separately to express his view

that an employer’s credible testimony could suffice. 490 

U. S., at 261. Because Justice White provided a fifth vote

for the “rationale explaining the result” of the Price 

Waterhouse decision, Marks, 430 U. S., at 193, his concur-

—————— 

7While Justice O’Connor did not define precisely what she meant by 

“direct evidence,” we contrasted such evidence with circumstantial 

evidence in Desert Palace, Inc. v. Costa, 539 U. S. 90 (2003). That 

Justice O’Connor might have intended a different definition does not 

affect my conclusion, as I do not believe a plaintiff is required to introduce any special type of evidence to obtain a mixed-motives instruction. 
10 GROSS v. FBL FINANCIAL SERVICES, INC. 

STEVENS, J., dissenting 

rence is properly understood as controlling, and he, like

the plurality, did not require the introduction of direct 

evidence. 

Any questions raised by Price Waterhouse as to a direct 

evidence requirement were settled by this Court’s unanimous decision in Desert Palace, in which we held that a 

plaintiff need not introduce direct evidence to meet her 

burden in a mixed-motives case under Title VII, as 

amended by the Civil Rights Act of 1991. In construing

the language of §2000e–2(m), we reasoned that the statute

did not mention, much less require, a heightened showing

through direct evidence and that “Congress has been

unequivocal when imposing heightened proof requirements.” 539 U. S., at 99. The statute’s silence with respect to direct evidence, we held, meant that “we should

not depart from the ‘[c]onventional rul[e] of civil litigation 

. . . [that] requires a plaintiff to prove his case by a preponderance of the evidence’, . . . using ‘direct or circumstantial evidence.’” Ibid. (quoting Price Waterhouse, 490 

U. S., at 253 (plurality opinion), and Postal Service Bd. of 

Governors v. Aikens, 460 U. S. 711 (1983)). We also recognized the Court’s consistent acknowledgment of the utility 

of circumstantial evidence in discrimination cases. 

Our analysis in Desert Palace applies with equal force to

the ADEA. Cf. ante, at 9–10, n. 4. As with the 1991 

amendments to Title VII, no language in the ADEA imposes a heightened direct evidence requirement, and we 

have specifically recognized the utility of circumstantial 

evidence in ADEA cases. See Reeves, 530 U. S., at 147 

(cited by Desert Palace, 539 U. S., at 99–100). Moreover, 

in Hazen Paper Co., we held that an award of liquidated 

damages for a “willful” violation of the ADEA did not 

require proof of the employer’s motivation through direct

evidence, 507 U. S., at 615, and we have similarly rejected 

the imposition of special evidentiary rules in other ADEA 

cases. See, e.g., Swierkiewicz v. Sorema N. A., 534 U. S. 
Cite as: 557 U. S. ____ (2009) 11 

STEVENS, J., dissenting 

506 (2002); O’Connor v. Consolidated Coin Caterers Corp., 

517 U. S. 308 (1996). Desert Palace thus confirms the 

answer provided by the plurality and Justice White in 

Price Waterhouse: An ADEA plaintiff need not present 

direct evidence of discrimination to obtain a mixedmotives instruction. 

IV 

The Court’s endorsement of a different construction of 

the same critical language in the ADEA and Title VII is 

both unwise and inconsistent with settled law. The butfor standard the Court adopts was rejected by this Court 

in Price Waterhouse and by Congress in the Civil Rights 

Act of 1991. Yet today the Court resurrects the standard 

in an unabashed display of judicial lawmaking. I respectfully dissent. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 08–441 

JACK GROSS, PETITIONER v. FBL FINANCIAL 

SERVICES, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT

[June 18, 2009] 

JUSTICE BREYER, with whom JUSTICE SOUTER and 

JUSTICE GINSBURG join, dissenting. 

I agree with JUSTICE STEVENS that mixed-motive instructions are appropriate in the Age Discrimination in 

Employment Act context. And I join his opinion. The 

Court rejects this conclusion on the ground that the words 

“because of” require a plaintiff to prove that age was the 

“but-for” cause of his employer’s adverse employment 

action. Ante, at 7. But the majority does not explain why 

this is so. The words “because of” do not inherently require a showing of “but-for” causation, and I see no reason 

to read them to require such a showing.

It is one thing to require a typical tort plaintiff to show

“but-for” causation. In that context, reasonably objective 

scientific or commonsense theories of physical causation 

make the concept of “but-for” causation comparatively

easy to understand and relatively easy to apply. But it is 

an entirely different matter to determine a “but-for” relation when we consider, not physical forces, but the mindrelated characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but 

more often we ascribe motives, after an event, to an individual in light of the individual’s thoughts and other 

circumstances present at the time of decision. In a case 

where we characterize an employer’s actions as having 
2 GROSS v. FBL FINANCIAL SERVICES, INC. 

BREYER, J., dissenting 

been taken out of multiple motives, say, both because the 

employee was old and because he wore loud clothing, to

apply “but-for” causation is to engage in a hypothetical

inquiry about what would have happened if the employer’s

thoughts and other circumstances had been different. The 

answer to this hypothetical inquiry will often be far from 

obvious, and, since the employee likely knows less than

does the employer about what the employer was thinking 

at the time, the employer will often be in a stronger position than the employee to provide the answer. 

All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the 

employer’s decision. And the fact that a jury has found 

that age did play a role in the decision justifies the use of 

the word “because,” i.e., the employer dismissed the employee because of his age (and other things). See Price 

Waterhouse v. Hopkins, 490 U. S. 228, 239–242 (1989) 

(plurality opinion). I therefore would see nothing wrong in

concluding that the plaintiff has established a violation of 

the statute. 

But the law need not automatically assess liability in 

these circumstances. In Price Waterhouse, the plurality 

recognized an affirmative defense where the defendant

could show that the employee would have been dismissed 

regardless. The law permits the employer this defense,

not because the forbidden motive, age, had no role in the 

actual decision, but because the employer can show that 

he would have dismissed the employee anyway in the 

hypothetical circumstance in which his age-related motive 

was absent. And it makes sense that this would be an 

affirmative defense, rather than part of the showing of a 

violation, precisely because the defendant is in a better 

position than the plaintiff to establish how he would have

acted in this hypothetical situation. See id., at 242; cf. 

ante, at 6 (STEVENS, J., dissenting) (describing the Title 

VII framework). I can see nothing unfair or impractical 
Cite as: 557 U. S. ____ (2009) 3 

BREYER, J., dissenting 

about allocating the burdens of proof in this way. 

The instruction that the District Court gave seems 

appropriate and lawful. It says, in pertinent part: 

“Your verdict must be for plaintiff if all the following elements have been proved by the preponderance 

of the evidence: 

. . . . . 

“[The] plaintiff’s age was a motivating factor in defendant’s decision to demote plaintiff. 

“However, your verdict must be for defendant . . . if 

it has been proved by the preponderance of the evidence that defendant would have demoted plaintiff 

regardless of his age. 

. . . . . 

“As used in these instructions, plaintiff’s age was ‘a 

motivating factor,’ if plaintiff’s age played a part or a 

role in the defendant’s decision to demote plaintiff. 

However, plaintiff’s age need not have been the only 

reason for defendant’s decision to demote plaintiff.”

App. 9–10. 

For these reasons as well as for those set forth by 

JUSTICE STEVENS, I respectfully dissent.