1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O F THE UNI TED STATES
Sy llabu s 

### GR OS S v . F B L FINANCIAL SERVICES, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 08–4 41. Ar g u ed M a r c h31, 200 9—Dec i ded Ju n e18, 2009 PetitionerGr oss file d suit, a l legi ngthat r e spondent (FBL) demoted hi m

in violation of the Age Discrimina tion inEmploy mentAc t of 1 9 6 7 (ADEA), wh ic hmakes itu n l awfu l forane m ploy erto t a k eadv e r s e ac tionag ain s t anemploy ee “because of such in div i du al’ s ag e,” 29 U. S. C. §623(a). At th e c l ose of tr ial, an d ov erFBL’ s objec t ion s , th e Dis t rictCourtins t ruct ed t h e j u ryt oent e r ave rdictforGros s if he proved, by a preponderance of the ev idence, that he was demoted an d h i s ag e w a s a motiv a t i n gfac t orin the demotion dec i sion, and told the ju r yth at ag e was a motiv a t i n gfac t orif it play ed a par t inth e demo

t i on. Ita l s o ins t ruct ed t h e j u ry t oret u r naverdictfo r FBL if it proved that it would have demoted Gross r e gardless of age. The jury ret u rned ave rdictfor Gros s . The Eight hCircuitreve rs ed a n d re

manded for a new trial, holding thatt h e j u ry ha d b een in corre ct ly in

structed unde rthe standard establ ished i n Pr ic e Wat erh ou sev. Hop

kin s , 490 U. S. 228, forc a ses u n d erTitle VI I of th e Civ i lR i gh ts Ac t of 196 4 wh enanemploy ee al le g e s th athe su ffered an adverse employ

men tac tion b e c a u s e of bo t hper m issi ble an d i m per m i ssi ble c o n s id

erations— i.e. , a “mixed-motives ” cas e . Held: A plain t iff br in gi n ga nADEA dispar ate-tr eat m e n t c l aim mu s t

prove, by a preponderance o f the ev idence, that age was the “but-for” cause of the challenged adverse em ployment action. The burden of persuasion does not shift to the empl oyer to show that i twould have taken the action regardless of ag e, even when a plaintiff has pro

duced some ev idence that age was on e mot iv a tingfac t or in thatdec i

sion

. Pp. 4–12

.

(a) Bec a use Ti tle VII is ma ter i allydiffer e nt with r e spec t to the releva ntb u rd en of pers ua s i on, t h is Cour t’ s inter p r e tation of the ADEA i s not g o v e rned byTi tle V II dec i sion s su c has Price Wate r -2 GROS S v. FBL FINANCIAL SERVI CES, INC. Sy llabu s hous ean dDe sertPalace, I n c. v. Costa , 539 U. S. 9 0 , 94– 95. Th i s Court ha s ne ver a pplied Title VII’ s burden-shifting f r amework to ADEA cla i ms a n d declines to do s ono w. When condu c ting s t a t utory inter p r e tation, the Cour t “m ust be c a r e ful not to ap plyr u les appl ic a ble under one statute to a di fferents t a t ut e wit h outca ref u l a n d crit i

cal examinatio n.” F e de ral E x pres s Corp. v. Holowecki , 5 52 U. S. ___,

___. Unlike T i tle VII, which has b een amended to ex plicitly author

ize discrimination claims where animproper consideration was “a motiv a t i n gfac t or” forth e adv e r s e ac tio n , see 42 U. S. C. §§200 0e

– 2(m) an d 2 000 e–5(g)(2)(B), t h e ADEA doe s n o t pr ov ide th at a pl ain t if f mayest abli s h disc r i minationbyshowingthat ag e was s i mplya mot i

va t i ng fa ct or. Moreove r , Co ngres s neglect e d to add suc ha provision to th e ADEA wh enit added §§2000e –2(m) an d 2000e– 5 ( g)(2)(B) to Ti

tle VII, even though it contem poraneously amended the ADEA in sev e r a l w a y s . Wh enCongr e ss amen ds one statutory provision bu t not a n other, it is pres umed to have a c ted intentiona lly, see EEOC v. Arabian American Oil Co. , 499 U. S. 24 4, 256, an d “n eg ativ e i m plic a tions rai s ed by disparate pr ovisio ns are strongest” where the provi

sion s w e r e“c on sider e d simu ltan eou sl y when the language raising the implica t ion was inserted,” Lindhv. Mu rphy , 521 U. S. 32 0, 33 0. Pp. 5–6.

(b) The ADEA’ s tex tdoes n o t author ize a nalleg e d mix e d-motiv e s age discrimin a tion clai m. The or dinary meaningof the ADEA’s re

quirement that an employ er took adverse action“because of” age is that ag e was the “r eason” that th e employer decide d to act. See Haze n Paper Co. v. B i ggi ns , 507 U. S. 60 4, 610. To e s t ab lisha di spa ra te-trea tmen tcla i m under this pla i n la ngua ge, apla i ntiff mus t prove that age was the “but- f or” caus e of the employer’s adverse deci

sion. See Bridgev. Pho e nix Bond & In de mnity Co. , 5 53 U. S. ___,

___. It follows that under §623(a)( 1 ), the p l aintiff retains the burden of per s uasion to es tab lish that “but -for” caus e. This Court ha s previ

ouslyheld this to be the bu r d en’ s proper allocation in ADEA case s, see, e.g ., Ke nt uck yReti rem e n t Syst em sv. EEOC, 554 U. S. ___, ___– ___, ___–___, and nothing i n the statut e’ s text indicates that Congress ha s ca rved outa nexcept ionfor a subset of ADEA case s. Where a statute i s “sile nt on the allo cation of the burden of persuasion,” “th e ordinary defa ult rule [is] that plai ntiff s bear the risk of failing to prove their cl aims. ” Schaff erv. We as t , 546 U. S. 49, 5 6

. Hen c e, th e burden of persuasion is the same ina lleg e dmix e d-motiv e s c a ses as in an yoth e rADEA disp ar ate-t r eatmen tac tio n . Pp. 7–9.

(c) This Courtrejects petitio n er’s co ntention that the proper inter

pretation of the ADEA i s no netheless controlled by PriceWaterho u se , which i n itiall y establi s hed that the burden of persuasion shifted in alleg e d mix e d- motiv e s Ti tle VII c l aim s . Itis farfr om c l earthat the3 Cite as: 55 7 U

. S. ____ (2009) Sy llabu s Cour t would hav ethe same appr oac h wereit to consider the question todayin the fi r s t in stance. Whatever Pric e Water h ou se ’sdeficiencies in ret r os pect , itha s b e com e eviden t in the y e ar s sinc e that c a se wa s decided that its burden-shifting framewor k is difficult t oapply. Th e problems a sso ciated with it s applica t ion have eliminat ed any per

c e iv able benefi t to ex tendingits fr a m ewor k to ADEA c l ai ms. Cf. Con

tinen t al T. V. , Inc. v. GTE Sy lvania Inc. , 43 3 U. S. 36, 47. Pp. 10–11. 526 F. 3d 35 6, v a c a ted an d r e man d ed.

T HOMAS , J., d e livered the opinion of the Court, in whi c h R OBERTS , C. J., and S CALIA , K ENNEDY , an d ALITO , JJ., joined. S TEVENS , J., filed a dissenting op inion, in whi c h S OUTER , G IN SB U R G , and B REYE R , JJ., joined. B REY ER , J., filed a dissenting opinion, in whi c h S OUTER and G IN SB U R G , JJ., join ed._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts
. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

# SUPREME CO URT O F THE UNI TED STATES
No. 08–4 41 

### JACK GROSS, PETITIONER v. F B L FINANCIAL S E RVIC ES , IN C

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [Ju n e18, 2009 ] 

### J USTICE 

### T HOMA S 

### delivered the opinion of the C o urt. The questio n presented by the petitioner in th is case is whether a plaintiff must present direct evidence of age discrimination in order to obtaina mixed- motives jur y instruction in a suit br ought unde rthe A g e Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et s e q . Because we hold that such a juryinstructionis never pr oper in an ADE A case, we vacate t h e decision below. I Petitioner Jack Gross began working for respondent FBL Finan cial Group, Inc. (FBL), in 1971. As of 2001, Gross held the positionof clai ms administration director. But in 200 3, when he was 54 ye ars old, Gross was rea s signed to t h e positi onof claim s project coordinator. At that same time, FBL transferred many of Gross’ job re sponsibiliti e s to a newly created position—claims admini

stration manager. That position was given to Lis a Kneesk e rn, who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Co urt opinion). AlthoughGross (in h i s2 GROS S v. FBL FINANCIAL SERVI CES, INC. Opinion of theCourt 

### new position) and Kneeskern re ceived the same compensa

tion, Gross considered the reassignment a demotion be

cause of F B L’s reallocation of his former job responsibil i

ties to Knee sk ern. In April 20 04, Gross fi led suit in District Co urt, alleging that his re assignment to the po sition of claims project coordinator violated the AD EA, which makes it unlawfu l for an emp l oyer to ta ke adverse action against an em

ployee “bec ause of su ch individual’s age.” 29 U. S. C. §623(a). The case pro c eeded to trial, where Gross intro

duced evid ence sugge sting t hat his reassignment was based at least in part on his age. FBL defended its deci

sion onthe grounds that Gross’ reassignment was part of a corporate restructu ring and thatGross’ new position was better suited to his ski lls. See Ap p. to Pet. f o r Cert. 23 a (District Court opinion). At the close of trial, and over FBL’s objections, the DistrictCo urt instru c t ed the ju r ytha tit m u st return a verdict for Gross if heproved, by a prepond e rance of t h e evidence, that FBL “demoted [him] to clai ms projec[t] coordinator” and that his “age was a motivating factor” i n FBL’s decision to demote him. App. 9–10. The jury wa s further instructed tha tGross’ a g e would qualify as a
“ ‘motivatin g factor,’ if [it] played a part or a role in [FBL]’s decision to demote [him].” Id. , at 10. The jury was als o instructed r e garding F B L’s burde n of proof. Accordin g t o the DistrictCourt, the “verdic tmust be for [FBL] .

. . if it has been proved by the prepon derance of the evidence tha t [FBL] would have demoted [Gross] regardless of his age. ” Ibid. The j u ry returne da verdict for Gross, awarding hi m $46,945 in lost compensation. Id. , at 8. FBL challenged the jury instru ctions on appeal. The United S t a t es Court of Appeals for the Ei ghth Circu it reversed an d remande dfor anew t r ial, holding tha tt h e jury had been incorrectly instruc t ed under the standard establishedin Price Wate rhousev. Ho pkins , 490 U. S. 2283 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt 

### (1989). See 526 F. 3d356, 358 ( 2008). In Price Wa ter

house , this Court add r essed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Ri ghts Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq ., when an employee alleges that he suffered anadverse employment action bec ause of both permissible and impermissible considerations— i.e. , a “mixed-motives” case. 490 U. S., a t232, 244–247 (plural

ity opinion). The Pric e Wa te rhouse decision was splin

tered. Fou rJustices joined a plurality opinion, see id. , at 231–258, J u stices Wh ite and O’Connor sep a rately con

curred in t h e judgment, see id. , at 258–261 (opinion of White, J.); id. , at 261– 279 (opinion of O’Connor, J.), an d three Justices dissented, see id. , at 279–29 5 (opinion of K ENN E DY 

### , J.). Six Justices ultimately agreed that if a Title VII plaintiff shows that dis crimination was a “moti

vating” or a“ ‘substanti a l’ ” factor i nthe 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 (pl u rality 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 em

ployer, the employee m u st presen t “direct e vid ence that a n illegitimate criterion was a substantial factor in the [em

ployment] decision.” Id

. , at 276. In accordan ce with Cir c uit preced ent, the Court of Ap

peals identi fied Justice O’Connor’s opinionas controlling. See 526 F. 3d, at 359 (citing Er ic ks on v. Farmland Indus

trie s, Inc. , 271 F. 3d 718, 724 (CA8 2001)). Applying tha t standard, the Court of Appeals found that Gro ss needed to present “[d] irect evidence .

. . sufficient to support a find

ing by a reasonable fa ct finder that an illegitimate crite

rion actually motivate d the adve rse employment action.” 526 F. 3d, at 359 (internal quotation marks omitted). In the Court of Appeals’ view, “d irect evidence” is only that4 GROS S v. FBL FINANCIAL SERVI CES, INC. Opinion of theCourt 

### evidence that “show[s] a spec ific link between the alleged discriminatory animus and the challenged decision.” Ibid. (internal quotation mark s omitte d). Only upon a presen

tation of such evidence, the Court of Appeals held, shoul d the burden shift to the employer “ ‘to convince the t r ier of fact tha tit is more likely than not that the de cision would have been the same absent consideration of the illegiti

mate factor

. ’ ” Ibid. (q uoting Pric e Wa te rhouse , sup ra , a t 276 (opinion of O’Conn o r, J.)). The Court of Appeals thus concluded that th e Distric t Court’s jur yinstructions were flawed because they allowed the burden to shift to FBL upon a presentation of a pre

ponderance of anycategory of evidence showing that age was a motivating facto r—not ju st “direct evid ence” related to FBL’s al leged consideration of age. See 526 F. 3d, at 360. Beca use Gross conceded that he had not presented direct evid ence of discrimination, the Cour t of Ap peals held that the DistrictCourt should not have given the mixed-motives instruc t ion. Ibid. Rather, Gross should have been held to the burden of persuasion applicable t o typical, non-mixed-motives claims; the jury thus should have been instructed o n ly to deter m ine whether Gross ha d carried his burden of “prov[ing] t hat age wa s the deter

mining factor in FBL’s employmen taction.” See ibid. We granted certiorari , 555 U. S. ___ (2008) , and now vacate the decision of t h e Court of Appeals. II The parties have asked us to decide whether a plaintiff must “p resent direc tev idence of discrimination in order t o obtain a mixed-motive instruction in a non-Title VII dis

crimination case.” Pet

. for Cert. i

. Before re aching this question, h o wever, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discri mination claim brought unde r5 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt 

### the ADE A

. 1 

### We hold th at it does not. A Petitioner relies on t h is Court’s decisions construing Title VII for his interpretation of the ADEA. Beca use Title VII is materially differe nt with respec t to the rele

vant burden of persuasion, howe ver, these decisions do not control our constructio nof the ADEA. In Price Wate rhouse , a plurality of the Court and two Justices concurring inthe judgm e nt determined that once a “plaintiff in a Title VII case proves that [the plaintiff’s membership in a p r otected class] played a m o tivating p a r t in an employment decision, the defendant may avoid a finding of liability only by pr oving by a preponderance of the evidence that it would have made the s a me decisio n even if it had not taken [that factor] into account.” 49 0 U. S., at 25 8; see also id. , at 259–260 (opinion of White, J.); id. , at 276 (opinion of O’Con n or, J.). But as we e x plained in Des e r tPala ce, Inc. v. Cos t a , 539 U. S. 90, 94–9 5 (2003), Congress has si nce amended Title VII by explicitl y authorizing discrimination claims in which an imprope r consideration was “a motivating factor” f o r an adverse employmen tdecision. See 42 U. S. C. §2000 e–2(m) (pro

viding that “an unlawful employ ment practice is estab

lished when the complaining party demo nstrates th at

——————

1 Although the parties did no t specif ica lly f r ame the que s tion to in

c l ude this thr e shold inquir y , “[t]he st ateme n t of an yqu estion presented is deeme dto comprise every subs idiar yquestion f a irly included ther ein.” Thi s Cour t’ s Ru le 14.1; see al so City of Sherrill v. On ei da Indian Nation of N. Y. , 544 U. S. 197, 21 4 , n . 8 (2005) (“ ‘Ques t ions not explicitly mentioned but ess e ntial to the analysis of the decisions belo w or to the correct disposi t ionof the other issues have been treated as subsid iary iss u es fairly compri sed by the question prese n ted’ ” (quotin g R. S t ern, E. G r es s m an, S

. Shapiro, & K. Geller, Supreme Court Practice 414 (8 th ed. 2002))); Ballardv. Com m i ssi oner , 544 U. S. 40, 46–4 7, an d n . 2 (2005) (ev a lu atin g“a qu estionan te r i or” to th e “ q u e stion s th e pa rt ies ra is ed”).6 GROS S v. FBL FINANCIAL SERVI CES, INC. Opinion of theCourt 

### race, color, religion, sex, or national origin was a motiva t

ing factor for any employment practice, even though other factors also motivated the pr acti ce” (emphasis added)); §2000e–5(g)(2)(B) (restricting the remedies available to plaintiffs proving violations of §200 0e–2(m)). This Court has never held that this burden-shifting framework applies to ADEA claims. And, we d e cline to do so now. When conducting sta t utory inter p retation, we “must be careful not to apply rul e s applicable under one statute to a different statute wit h out careful and critical examination.” Federa l Expres s Corp. v. Holowecki , 552 U. S. ___, ___ (2008) (s lip op., at 2). Unlike Title VII, the ADEA’s text does not provid e tha ta plaintiff may estab

lish discrimination b yshowing that age was simply a motivating factor. Moreover , Congress neglected to add such a prov ision to the ADE A wh en it amended Title VII to add §§20 00e–2(m) and 2000e–5(g)(2)(B), e v en though i t contemporaneously am ended the ADEA in several ways, see Civil R i ghts Act o f 1991, §11 5 , 105 Stat. 1079; id. , §302, at 1088. We cannot ignore Congress’ decision to a m end Title VII’s releva nt provisions but not make similar changes to the ADEA. When Congress amends one statutory provi

sion but not another, it is presumed to have acted inten

tionally. S ee EEOC v. Arabian American Oil Co. , 499 U. S. 244, 256 (1991). Furthermore, as the Court h a s explained, “negative implicat ions raised by dispara t e provisions are stronge s t” when t h e provisions were “co n sidered si multaneous l y when the language raising t h e implication was inserted.” Lindhv. Murphy , 521 U. S. 320, 330 (1997). As a result, the Court’s inte rpretation o f the ADEA is not governed by Tit l e VII decisions such as De se rtPalac eand Pric e W a te r h ouse . 2

——————

2 J US TI CE S TEVENS ar g u es that the Cour t mu st incorporate its past inter p r e tation s of Title VII into the ADEA b e ca us e “the s u b s ta ntiveCite as: 55 7 U

. S. ____ (2009) 7 Opinion of theCourt 

### B Our inquiry therefore must focu s on the text of th e ADE A to d e cide whether itauthorizes a mixed-motive s age discrimination claim. It does not. “St a tutory con struction must begin with the language employed by Congress and the ass u mption that the ordinary meaning of that language accu rately expresses the legislative pur

pose.” Engine Mfrs. Assn. v. South Coast Air Quality Managem e nt Dist. , 541 U. S. 246, 252 (2 004) (internal quotation mark s omitted). The ADEA provides, in rel e vant part, that “[i]t shall be unla w ful for an employer .

. . to fail or refuse to hire or to discharge any in dividual or otherwise discriminate against any individual with re

spect to his compensation, ter ms, conditions, or privileges of employ ment, 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 Web ster’s Third New International Dictionary 19 4 (1966); see also 1 Oxford Englis h Dictionary 746 (1933)

—————— provisions of the ADEA were derived in h a ec ve rb afrom Title VII,” pos t , at 4 (d is sent ing opinion) (internal quotation m a rks omitte d), and b e ca us e the Court ha s freq u e ntly a pp lied i t s inter p r e tat i ons of Title VI I to the ADEA, see post, at 4

– 6

. But the Co ur t’ s appr oac hto inter p r e tin g the ADEA in light of Title VII has not been uniform. In Ge n e r a l D y nam i cs Lan d System s, Inc

. v. Cline , 540 U. S. 581 (20 0 4), forex ample, the Cour t dec lined to inter p r e t the ph ras e“becaus eof .

. . age” in 29 U. S. C. §623(a) to bardisc r i min a tionag ain s t people o f all ag es, ev en thoughthe Cour t had pr eviouslyinter p r e ted “bec au se of .

. . r a ce [or] sex” in Ti tle VII to b a rdis c r i mination a g ainst peop le of allr a c e s a n d bothsex e s, se e 54 0 U. S., a t5 84, 5 92, n

. 5. An d th e Cou r t h a s n o t definitively decided whether the evidentiary frameworkof McDo n n e ll DouglasCorp. v. Green, 411 U. S. 792 (197 3), utilized in Title VII case s is appropriate in the ADEA context. See Reeve s v . Sand ers o n Plu m bin g Products, Inc. , 530 U. S. 1 33, 142 (2 00 0); O’Connorv. Consolidated Coin Caterers Corp

. , 517 U. S. 3 08, 311 (1 996 ). Inth is in s t an c e , it is th e textual differences between Title VII andthe ADEA th at prevent us from applyin g Price Wat e rhou sean d Des ert Palaceto feder a la g e disc r i minationc l aims.8 GROS S v. FBL FINANCIAL SERVI CES, INC. Opinion of theCourt 

### (defining “because of” t o mean “By reason of , on account of

” (italics in original)); The Rando m House Dictionary of the English Language 132 (1966) (defining “because” to mean “by reason; on a ccount”). Thus, the or dinary mean

ing of the ADEA’s re quirement that an employer took adverse action “because of” age is that age was the “rea

son” that the employe rdecided to act. See H aze n Paper Co. v. Biggi ns , 507 U. S. 604, 610 (1993) (ex p laining that the claim “cannot succeed unless the employee’s protecte d trait actuall yplayed a role in[the employer’s decisionmak

ing] process and had a determinative influence on the outcome” (emphasis a d ded)). To establish a disparate

treatment claim underthe plain language of the ADEA, therefore, a plaintiff must pr ove that age was the “but-for” cause of the employer’s adverse decision. See Bridgev. Phoenix Bond & Inde mnity Co. , 553 U. S. ___, ___ (2 00 8 ) (slip op., at14) (recognizing that the phrase, “by reason of,” requires at least a showing of “but fo r” causa t ion (internal quotation marks omitted)); Safeco Ins

. C o . of Americ av. Burr , 551 U. S. 47, 63–64, and n. 14 (200 7) (observing that “[i]ncommon talk, the phra se ‘based on’ indicates a but-for ca usal relationship and thus a neces

sary logica l condition” and tha tthe statu t ory ph ras e , “based on,” has the sa me meanin gas 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 om ission is n o t regarded a s a cause of an ev ent if the particular event would have occurred without it”). 3

——————

3 J US TI CE B REY ERcontends that there is “n othing unfa i ror impra c ti

cal” ab out hinging liability o nwhethe r “forbidden mot ive . . . play[ed] a role in the em ployer’s decision.” Post , at 2–3 (di ssen t in gopin ion)

. B u t that is a dec i si on for Cong r e s s to make. See Florida Dept . of Rev e nuev. PiccadillyCafeterias, I n c. , 554 U. S. ___, ___ (2008) (s lip op., at 18)

. Congress am ended Title VII to allo wfor employe rliabili ty when disc r i mination“was a motivating fa ctor fo r any employment practice,9 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt 

### It follows, then, tha tunder §6 23(a)(1), th e plaintiff retains the burden of persuasion t o establish that age wa s the “but-for” cause of the employe r ’s adverse action. In

deed, we have previously held that the burdenis allocated in this manner in ADEA cases. See Kentuck yRetirem en t System sv. EEOC, 554 U. S. ___, ___–_ __, __ _–___ (20 0 8) (slip op., at 2–4, 11–13); Reeve sv. Sanderson Plumbing Products, Inc. , 530 U. S. 133, 141, 143 (2000). And noth

ing in the st atute’s tex t indicates th at Cong ress has car v ed out an exception to that rule for a subset of ADEA cases. Where the statutory te xt is “silent on the allo cation of the burden of persuasion,” we “begin with the ordinary defaul t rule that pl aintiffs bea rthe risk of failing to prove thei r claims.” Schafferv. Wea s t , 546 U. S. 49, 56 (2005); see also Meach a m v. Kno lls Atomi c Power Lab o ratory , 55 4 U. S. ___, ___ (2008) (s lip op., at 6) (“Absent some reason to believe t hat Congress intendedotherwise,

. . . we will conclude that the burden of persu a sion lies where it usu

ally falls, u p on the party seeking relief” (int ernal quota

tion marks omitted)). We have no warrant to depart from the general rule in this setting. Hence, the burden of persuasion n e cessary to establish employer li ability is the same inalleged mi xed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a pr eponderance of the evidence (which maybe direct o rcircums ta ntial), that age was th e “but-for” cause of the challenged employer decision. See Reeve s , sup ra , at 141–1 43, 147. 4

—————— even tho u gh other factors also motiv a te d the pr ac tice,” 42 U. S. C. §200 0e– 2 (m) ( e mph a si s add e d), bu t did n o t si milar l ya m en d th e ADEA , see supra , at 5–6. We mu st giv eeffec tto Con g r e ss’ c h oi c e . See 14 Pen n Plaza LLC v. Pyett , 556 U. S. ___, ___ (200 9) (slip op., at 21). 4 Beca us e we hold that ADEA plainti ffs retain the burden of persua

sion to prove all d i sp arate-treatment c l a i ms, we do not need to a ddr es s whether plaintiffs must present di rect , ra t h er t h a nc i rcum s t a nt ia l, evidence to ob tain a burden-shifting instruction. Thereis no height

-10 GROS S v. FBL FINANCIAL SERVI CES, INC. Opinion of theCourt 

### III Finally, we reject petitioner’s contention that our inter

pretation of the AD E A is controlled by Pr ice W a t e r h ouse , which initially established that the burden of persuasion shifted in a lleged mixed-motives Title VII claims. 5 

### In any event, it is far from cl ear that th e Court would have th e same approach were it to co nsider the question today in the first instance. Cf. 14 Penn Plaza LLC v. Pyett , 556 U. S. ___, ___ (2009) (slip op., at 21) (declining to “intro

duc[e] a qualification into the ADEA that is not found in its text”); Me a c h a m , su pra , at ___ (slip op., at 16) (explain

ing that the ADEA m u st be “read .

. . the way Congr e ss wrote it”).

—————— ened evidentiary requirem ent for AD E A plain t iff s t osati sfyth eir burden of persuasion that age wa s the “but-for” cause of their em

ployer’s adverse action, see 29 U. S. C. §6 23(a), and we will im ply none. “Congress has been unequivocal wh en imposing heightened proo f requirements” in other statutory co ntexts , includin g in other subsec

tions within Title 2 9 , when it has seen fit. See Des ert Palace, In c. v. Costa, 539 U. S. 90, 99 ( 2 0 0 3 ); see also, e.g. , 25 U. S. C. §250 4(b)(2)( B ) (imposin g“c l e aran d c o n v in c i ngev iden c e ” stan dar d); 29 U. S. C. §722( a)(2)(A) ( s ame).

5 J US TI CE S TEVENS a l s oc o n t e n d s t h a tw em u s ta p p l y Price Water

hous eunder th e reasoning of Smithv. Ci ty of Jack so n , 544 U. S. 22 8 (200 5). See post , at 7. In Smith , the C o ur t appliedt othe ADEA i t s pr e-1991 in te r p r e tationof Title VII withr e spec t to di spar ate- impac t c l aims de spit e Con g r e ss’ 1991 a m en dme n t addin gdis p ar ate-im pac t c l aims to Ti tl e VII bu t n o t th e ADEA. 544 U. S., at 240. Bu t th e amendments made byCong r e ss in th is same legisl atio n, which added the “motiv a ti ngfac t or” lang uag eto Ti tle VII, under mine J US TI C E S TEVENS ’ ar g u ment. Congr e ss not only ex plic itlyadded “motiv a ti ng fac t or” liabil i t yto Title VII , see supra , at 5 –6, but italso parti a lly abr og ated Pr i c eWat e rh ouse ’s holding by elimina t ing an emp l oyer’s c o mplete affir m ativ e defense to “motiv a tingfac t or” claim s , see 42 U. S. C. §2000e–5(g)(2)(B). If su c h“m otiv atin gfac t or” c l aims we r e alr e adypar to f Title VII, th e addi tionof § 200 0e– 5 (g)(2)(B) alon e wou l d hav ebeen suffic i ent. Cong r e ss’ c a r e fultailor i ngof the “motiv a ti ng fac t or” c l aim i nTitle VII, as well as the absence of a provision parall el to §20 00e –2( m) inth e AD EA, c o n f ir ms that we c a nnot tr ansferth e PriceWate rho u seburden-shi fting framewo r k into the ADEA.11 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt 

### Whatever the deficienc i es of Price Wate rhous ein retro

spect, it ha s become evident in the years since that ca se was decide d that its b u rden-shifting framewo r k is difficu lt to apply. For example, in ca ses tried to a jury, courts have found it particularly difficultto craft an instruction to explain its burden-shifting frame w ork. See, e.g. , Tyler v. Bethl e hem Ste e l Corp. , 958 F. 2d 1176, 1179(CA2 1992) (referring t o “the murky wa ter of shifting burdens in discrimination cases”); Visser v. P a cker Engi neerin g Ass o ciates, Inc. , 924 F. 2d655, 661 (CA7 1991) (en banc) (Flaum, J., dissenting) (“The difficulty judges have in formulating [burden-shifting] instructions and jurors have in applying them can b e seen in the fact that j u ry verdicts in ADEA cases are s u pplanted by judgme nts notwith

standing th e verdict or reversed on appeal more frequentl y than jury verdicts generally”). Thus, even if Pri ce Wa te r house was doctrinally sound, the problems associated wit h its application have eliminated any perceivab le ben e fit to extending its framewo r k to ADEA claims. Cf. Continen ta l T. V., Inc. v. GT E Sylvania Inc. , 433 U. S. 36, 47 (1977) (reevaluating precede n t that was subject to criticism and “continuing controversy and confusion”); Paynev. Tennessee , 501 U. S. 808, 839–844 (1991) (S OUTER 

### , J. , concurring). 6

——————

6 Gr oss points out that the Cour t ha s als oapplied a b u r d en -sh i ftin g fra m ework t ocert a i n cla i m s b r oughtin co nt ext s ot her tha npurs ua ntt o Title VII. Se e Brief for Pe titioner 54–55 (citing, inter alia , NLRBv. Transpo r tatio nManagem e nt Corp. , 462 U. S. 39 3, 401 –4 03 ( 1 9 8 3 ) (claims brought under the NationalLabo r Relations Ac t (NLRA)); Mt. Healthy City Bd. of Ed. v. Doyle , 429 U. S. 274, 28 7 (1 977) (c on sti t u tional claims))

. T h ese cases, howe ve r , do not r e quir e the Cour t to adopt h i s c o n t r astatu t or yposition

. Th e c a se in v o lv ingth e NLRA did n o t req u ire t h e Courtt odecide in t h e firs tin s t a n ce whet her b u rden s h ift

ing should apply as the Co urt inst ead de ferred to the National Labo r Relat i on Boar d’s determina t ion thatsuch a framework was appropri

ate. See NLRB , supra , at 400– 40 3. An d th e c o n s titu tion al c a ses su c h as Mt. Health y have no b e a r ing on t h e co rrectint e rpret a t i on of ADE A12 GROS S v. FBL FINANCIAL SERVI CES, INC. Opinion of theCourt 

### IV We hold that a plainti ff bringing a disparate

- treatment claim pursuant to the ADEA must prove, by a preponder

ance of the evidence, t hat age was the “but-for” cause of the challen g ed adverse employme nt action. The burden of persuasion does not shift to the e m ployer to show thatit would have tak e n the action regardless of age, even whe n a plaintiff has produced some evidence that age was one motivating factor in th at decisi on. Ac cordingl y, we vacat e the judgme nt of the Court of Ap peals and remand the cas e for further proceedings consistent with this opinion. It is so orde red.

—————— cla i m s , which a r e gove rned b ys t a t ut ory t e xt
._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009) S TEVENS , J., di s s e nting 

# SUPREME CO URT O F THE UNI TED STATES
No. 08–4 41 

### JACK GROSS, PETITIONER v. F B L FINANCIAL S E RVIC ES , IN C

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [Ju n e18, 2009 ] 

### J USTICE 

### S T EVEN S 

### , wit hwhom J U S TICE 

### S OUTER 

### , J US T I C E 

### G INSBURG 

### , and J USTIC E 

### B REYER

### jo in, dissenting. The Age Discrimination in Employment Act of 196 7 (ADEA), 29 U. S. C. §621 et seq. , makes it unlawful for an employer to discriminate against any emplo y ee “because of” that individual’s age, §623(a). The most n a tural read

ing of this statutory text prohibits adverse employme nt actions motivated in whole or in part by the age of the employee. The “but-for” causation standard endorsed by the Court today was advancedin J USTIC E 

### K EN NED Y

### ’s dissenting opinion in Price Wa te rhousev. Ho pkins , 4 90 U. S. 228, 279 (1989), acase 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-fo r standa rd inthat ca se, but so too did Congress when i t amended Ti tle VII in 1991. Gi venthis unam b iguous his

tory, it is parti c ularl y inappr opriate for the Court, on its own initiative, to adoptan interpr e tation of t h e causation requirement in the AD EA tha tdiff ers from th e established reading of Title VII. I disagree not only with the Court’s interpretati on of the statute, but also with it s decision t o 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 a g e discrimination to obtain a mixed-motives instruction.2 GROS S v. FBL FINANCIAL SERVI CES, INC. S TEVENS , J., di s s e nting 

### I The Court asks wheth e r a mixed-motives instruction is ever appropriate in a nADEA case. As it a c knowledge s , this was not the question we gran ted certiora r i to decide. 1 

### Instead, the question arose for the first time in respon

dent’s brief, which asked us to “overrule Price Wa terhous e with respec t to its ap plication to the ADEA .” Brief for Respondent 26 (boldface type deleted). In the usu a l course, this Court would no t entertain such a reques t raised only in a m e rits brief: “ ‘We would nor m ally expect notice of an intent to make so far-reaching an argument i n the respondent’s opposition to a petition for certiorari, c f

. this Court’s Rule 15.2, thereby as suring adequate prepa

ration time for those likely a ffected and wishing to partici

pate.’ ” Alabamav. Shelton , 535 U. S. 654, 660, n. 3 (20 02) (quoting South Central Bell Telephone Co. v. Alabama , 526 U. S. 1 60, 171 (1999)). Yet the Court is unconcern ed that the qu estion it chooses to ans wer has not been briefed by the part ies or inter e sted amici curiae

. It s failure to consider the views of the Unit ed States, which represents the agency charged with administering the ADEA, is especially ir responsible. 2 

### Unfortunately, the ma jority’s inattention to prudential Court prac t i ces 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 indi vidual or o t herwise di s criminate against any individualwith respec t to his com

-

——————

1 “The question presented by the peti tioner in this case is whethe r a plaintiff must present direct evidenceof age discrimination in order to obtain a mix e d-motiv e s jur yinstr u ction in a suit bro u ght under th e [ADEA].” Ant e , at 1.

2 The United States fi led an am i c us c u ri a e b r ief supporting petitioner on the questio npresented. At or alar g u ment, the Gov e r n ment ur g e d that the Cour tshould not r e ac h the i ssue i ttake s up tod a y. See Tr. of Or al Ar g . 20– 21, 28– 29.3 Cite as: 55 7 U

. S. ____ (2009) S TEVENS , J., di s s e nting 

### pensation, terms, conditions, or pri vileges of employment, becaus e of such indivi dual’s age.” 29 U. S. C. §623(a)(1) (emphasis added). As we reco gnized in Pri c e Waterhou se when we co nstrued the identical “because of” language of Title VII, s ee 42 U. S. C. §2000e– 2 (a)(1) (making it unlaw

ful for an employer “to fail or re fuse to hire orto discharge any indivi dual .

. . with respe ct to his compensation, terms, conditions, or privileges of employmen t , becaus e of such individual’s race , color, religion, sex, or national origin” (em p hasis added)), the mos tnaturalre ading of the text proscri bes adverse employ ment actions motivated in whole or in part by the age of the e m ployee. In Price Wate rhouse , we concluded that the words “ ‘be

cause of’ s u ch individual’s .

. . s e x . . . meanthat gender must be irrelevant to employme nt decisions.” 490 U. S., at 240 (plurality opinion); see als o id. , at 260 (White, J. , concurring in judgment). To establish a violation of Tit l e VII, we therefore held, a plaintiff h a d to prove that her sex was a moti vating fa ctor in an adverse employment deci

sion. 3

### We recognized that the employer had an affirmative defense: It c o uld avoid a finding of liability by proving that i tw o u l dh av e m a d e t h e s a m ed e c i s i o ne v e ni f i th a dn o t taken the plaintiff’s sex into account. Id. , at 244–245 (plurality opinion). But this affi rmative defense did n o t alter the meaning of “because of.” As we made clear, whe n “an employer considers both gender and legitimate factors at the time of making a decision, that decision was ‘be

-

——————

3 Although Justice White st a t ed tha t the p l aintiff ha d to show that hersexwas a “subs t anti al” fac t or , while the plur alityused the ter m “motiv a ting” f a c t or , these st andar d s ar e i n ter c h ang e able, as ev iden c e d byJu stic e White’ s quotation of Mt. H e althy City Bd. of Ed

. v. Doyle , 429 U. S. 274, 28 7 (1 977): “ ‘ [ T]h ebu r d enwas pr oper lypl ac ed u p on[th e plaintiff to s h ow that theillegiti ma te criterion] was a “subst anti a l factor”—or, to put it in othe r words , th at itwas a “ m otiv atin gfac t or” ’ ” in the adversedecision. Pri ce Wa ter h ou se , 490 U. S., at 259 (emph a sis added); see al so id. , at 249 (plu r a lityopin ion) (u sin g“su b stan ti al” an d “motiv a ting” inter c h ang e ably)

.4 GROS S v. FBL FINANCIAL SERVI CES, INC. S TEVENS , J., di s s e nting 

### cause of’ sex.” Id. , at 241; see als o id. , at 26 0 (White, J., concurring in judgment). Wereadily rejected the dissent’s contrar yas sertion. “T o construe t h e words ‘ because of ’ as colloquial s h orthand for ‘but-for’ causation,” we said, “is to misunderstand them.” Id. , at 240 (plurality opinion). 4 

### Today, ho wever, the Cou rt int e rprets the words “be

cause of” in the ADEA “as colloquial shorthand for ‘bu t -for’ causation.” Ibid. Thatthe Court i s construing the AD E A rather thanTitle VII does not just ify this departure from precedent. The relevant language in the two statutes is identical, and we ha ve long recogn ized that ou r interpreta

tions of Title VII’s language apply “with equal force in th e context of age discrimination, forthe substa ntive provi

sions of theADEA ‘we r e derived i nhaec v erb a from Titl e VII.’ ” Tra n s World A i rlines, Inc. v. Thurston , 469 U. S. 111, 121 (1 985) (quoting Lorillardv. Pons , 434 U. S. 575, 584 (1978)). See generally Nor t h cross v. Bo ard of Ed. of Memphis City Schoo ls , 412 U. S. 427, 428 (1973) (per curiam)

. F o r this reas on, J USTIC E 

### K E NNEDY

### ’s dissent in Price Wa ter h ouse assumed the pl urality’s mixed-motives framework extended to the ADEA, see 49 0 U. S., at 292, and the Courts of Appeals to have considered the issue unanimously have applied PriceWaterhou se to ADE A claims. 5

——————

4 We wer en odou b t awar e th at dic t ion a r i es defin e“bec ause of” as “by reason of” or “on account of.” Ante , at 7–8. Con t r a r yt oth e major i ty ’ s bald a sser t ion, howev e r , this does not est abli s h that th e ter mdenotes b u t -for ca us a t ion. The dict iona ries t h e Courtcit e s do not , for ins t a n ce, define “because of” as “ solelyby reason of” or “ exclu s ively on account of.” In Pric e Wate rhou se , we re cognized that the words “because of” do not mean “ solely because of,” an d we held that the inquiry “commanded by the words” of the statute was whethe r ge nder was a m o tivating factor inth e employmen tdec i sion

. 490 U. S., at 241 (plu r a li tyopin ion)

.

5 See Febres v. Challenger Caribbean Corp ., 214 F. 3d 57 (CA1 2 000); Ostro w ski v. A t lan t icMut

. In s. Cos

. , 968 F. 2d 1 7 1 (CA2 199 2 ) ; Starce sk i v. W estin gho u s eElec. Corp

. , 54 F. 3d 108 9 (CA 3 19 95); EEO C v. Warfield-Ro h r CasketCo ., 364 F. 3d 16 0 (CA4 20 04); Rachid v. Jac k5 Cite as: 55 7 U

. S. ____ (2009) S TEVENS , J., di s s e nting 

### The Court nonetheless suggests that appl ying Pr ice Wa terhous e would be inconsistent with our ADEA prece

dents. In particular, t h e Court relies on our statement in Hazen Pa pe r Co

. v. Biggins , 507 U. S. 604, 610 (1993), that “[a disparate-treatment] claim ‘cannot succeed unless the employee’s protected trait actual l yplayed a role in [the employer’s decisionma k i ng] proce ss and had a determin a tive influen ce on the o u tcome .’ ” Ante , at 8. The italicized phrase is at best inconclusive as to the meaning of the ADEA’s “because of” language, however, as other passage s in Hazen Paper Co. demonstrate. We als o stated, for instance, that the ADEA “requires the employer to ignore an employ ee’s age,” id

. , at 612 (emphasis added), and noted that “[w]hen the employer’s decision is wholly moti

vatedb yfa ctors other than age,” there is no vi olation, id ., at 611 (emphasis altered). So too, we indicate d the “possi

bility of dual liabil i ty under ERI SA and the ADEA whe r e the decision to fire the empl oyee was motivated both by the employee’s age and by his pension status,” id. , a t 613—a classic mixed-motives scena r io. Moreover, both HazenPaper Co . and Reevesv. Sander

son Plumbing Products, Inc. , 53 0 U. S. 133 (2000), on which the majority also relies, support the conclusion that the ADEA should be interprete d consistently with Title VII. In those non-mixed-motives ADE A case s, the Court followed the standards set fo rth in non-mixed-motives Title VII cases including McDonnell Douglas Corp. v. Gre e n , 411 U. S. 792 (1973), and Texas Dept. of Commu

nity Affairs v. Burdine , 450 U. S. 248 (1981)

. See, e.g ., Reeve s , 530 U. S., a t1 41–143; Hazen Pa pe r Co

. , 507 U. S.,

—————— In The Box, I n c ., 376 F. 3d 305 (CA 5 20 04); Wexler v. Whit e’s Fin e Furnit ure, Inc

. , 317 F. 3d 56 4 (CA 62 0 0 3 ); Viss er v. Pack er Eng. As socs ., Inc. , 924 F. 2d 655 (C A7 199 1) (enban c ) ; Hutson v. McDonn ell Dou g las Corp. , 63 F. 3d 771 (C A8 1 9 95); Lewis v. YMCA , 208 F. 3d 130 3 (CA 1 1 200 0) (per c u ri am );see also Gonzagowskiv. Wi dnall , 115 F. 3d 744, 7 49 (CA10 199 7).6 GROS S v. FBL FINANCIAL SERVI CES, INC. S TEVENS , J., di s s e nting 

### at 610. Th is by no means indica tes, as the majority re a sons, tha t mixed-mo tivesADEA cases shoul dfollow th ose standa rds. Rather, i tunder scores that ADEA standards are gene rally unde r stoo d to conf orm to Ti tle VII standa rds. II The conclusion that “because of ” an individual’s age means that age was a motivating factor in anemployment decision is bolstered by Cong ress’ reaction to Pric e Wa te r housein th e 1991 Civil Rights Act. As part of its response to “a number of recent decisions by the United Sta t es Supreme Court that sharply cut backon the scope an d effectiveness of [civil rights] laws,” H. R. Rep. No. 102–40, pt. 2, p. 2 (1991) (hereinafter H. R. Rep.), Congress elimi

nated the affirmative defense to li ability that Pr ic e W a te r househad furnished e m ployers and provided instead th at an employer’s same-de c ision showing would limit only a plaintiff’s remedies. S ee §2 000e– 5 (g)(2)(B). Importantly, however, Congress ratified Price Wa terhous e ’s interpreta

tion of the plaintiff’s burden of proof, rejecting the dis

sent’s suggestion in th at case that but-for ca usation was the proper standard. See §2000e–2(m) (“[A]n unlawfu l employmen tpractice is established when the complaining partydemonstrates th at race, co lor, religion, sex, or na

tional origin was a mo tivating factor for an y employmen t practice, e v en thoughother fact ors also motivated th e practice”). Because the 1991 Act amended only Title VII and not the ADEA with respec t to mixe d- motives claims, the Court reasonably declines to apply the amended provisions to the ADEA. 6

### But itproc eeds to ignore the concl u sion com

-

——————

6 There is, ho wever, some evi d encethat Cong r e ss intended the 199 1 mix e d-motiv e s amendments to apply to the ADEA as well. See H. R. Rep., pt. 2, at 4 (n otin gth at a “n u m berof oth e rlaws ba n n i n gdisc r i mi

nation, inclu d ing .

. . theAge Di sc r i mination in Employ ment Ac t (ADEA), 29 U. S. C. §621, et seq ., ar e modeled afteran d h av ebeen7 Cite as: 55 7 U

. S. ____ (2009) S TEVENS , J., di s s e nting 

### pelled by this interpretation of the Act: Pr ice Wa terhous e ’s constructio nof “becau se of” remains the gove rning law f o r ADEA clai ms. Our recentdecision in Smithv. City of Ja ckson , 5 44 U. S. 228, 240 (2005), is precisely on point, as we consid

ered in tha tcase the effect of Con gress’ failu re to amen d the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provis ions in the 1991 Act. Noting th at “the rel e vant 1991 amendments expanded the coverage of Title VII [but] did not amend the ADE A or s p eak to the subject of age discrim i nation,” we held that “ Wards Cov e ’s pre-1991 interpretation of Title VII’s identical languag e remains applicable to the ADEA. ” 544 U. S., at 240 (dis cussing Wa rds Cov eP a cking Co. v. Atonio , 490 U. S. 642 (1989)); see also Meacham v. Knolls Atomic Po wer Labora tory , 554 U. S. ___, ___ (2008) (sl i p op., at 15). If the Wards Cove disparate-impact framework that Congress flatly r e pudiat ed in the Title VII context continues to apply to ADEA cla i ms, the mixed-motives framework that Congress subs tantially endorsed surely applies. Curiously, the Court reaches the opposite conclusion, relying on Congress’ p a rtial ratification of Price Wa te r houseto argue against that case’s precedential value. It reasons that if the 1991 amendments do not apply to th e ADE A , Pric e Wa terhou se likewise must not a p ply because Congress effectively codified Pr ic e W a te r h ouse ’s holding in the amendments. Ante , at 5–6. This does not follow. To the contrar y , the fact t hat Congre ss endorsed this Court’s interpretati on of the “because of” language in Price Wa ter

house(even as it rejected the employer’s affirmative de

-

—————— inter p r e ted in a manner c o nsistent withTitle VII,” a n d that “these ot her la ws m o deled a f t e r Title VII [s hould] b eint e rpret e d cons is t e nt ly in a mannerc o nsistent withTitle VI I as a m ended bythi s Ac t,” inc l ud

ingthe mix e d-motiv e s pr ov is ions).8 GROS S v. FBL FINANCIAL SERVI CES, INC. S TEVENS , J., di s s e nting 

### fense to liability) provi d es all the more reason to adhere to that decision’s motivat i ng-factor t e st. Indeed, Congres s emphasized in passing the 1991 Act tha tth e motivating

factor test was consist e nt with its original intent in enact

ing Title VII. See, e.g. , H. R. Rep., pt. 2, at 17 (“When enacting th e Civil Righ ts Ac t of 19 64, Congress made clear that it intended to prohibit allinvidious con s ideration of sex, race, color, religion, or nation a l origin in employmen t decisions”); id. , at 2 (st a ting that t h e Act “ r eaffirm[ed] tha t any reliance on prejudi c e in mak i ng 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 argu ment that the mixed-motives approach has proved unwork able

. Ante , at 10–11. Be

cause Congress has codified a mixed-motives framework for Title VII cases—the vast majori ty of antidiscrimination lawsuits—the Court’s concerns about that fra m ework are of no mom e nt. Were t h e Co urt tr uly worriedabout diffi

culties faced by t r ial c o urts and j u ries, moreover, it wou l d not reach today’s deci sion, which will further complicate every case in which a plaintiff rais es both ADEA and Titl e VII claims. The Court’s resurrection of the but-for causat ion stan

dard is un warran t ed. Pric e Wa terhous e re pudiated th at standard 2 0 years ago, and Congress’ response to ou r decision further militates against the crabbed interpreta

tion the Court adopts today. The answer to the question the Court has elected to ta ke up—whethe ra mixed

motives 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 questi o n by following our unani mous opinion in De ser t P a lac e, In c.Cite as: 55 7 U

. S. ____ (2009) 9 S TEVENS , J., di s s e nting


### v. Costa , 539 U. S. 90 (2003). I would acco rdingly hol d that a plaintiff need not present direct evidence of a g e discrimination to obtain a mixed-motives instruction. The source of the direct-eviden ce debate is Justice O’Connor’s opinion con c urring in the judgme nt in Pri c e Wa terhous e . Writing only for herself, Justice O’Connor argued tha ta plaintiff should be required to introduce “direct evi d ence” tha ther sex motivated the decision before the plurality’s mixed-motives framework would apply. 490 U. S., at 27 6. 7

### Many co urts have treated Jus

tice O’Conn o r’s opinion in Price Wate rhouse as controllin g for both Title VII and ADE A mixed-motives cases in light of our statement in Marksv. United Sta t es , 430 U. S. 188, 193 (1977), that “[w]h e n a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the h o lding of th e Court ma y be viewed as that position tak e n by those Members who concurred i nthe judg ments on the narrowest grounds.’ ” Unlik e the cases Marksaddressed , however, Price Wa te r house garn ered five v o tes for a single rationale: Justice White agreed with the plurality as to the motivating-fac t or test, see supra , at 3, n. 3; he disagreed only a s to the type of evidence an employer was required to submit to pro v e that the same resultwould have occurre d absent the unlawful motivation. Taking the plurality to demand objective evidence, he wrote separately to express his vie w that an em ployer’s credible testi m ony could suffice. 4 9 0 U. S., at 26 1. Because Justice Wh ite provided a fifth vote for the “r ationale ex plaining the result” of the Pri c e Wa terhous e decision, Marks , 430 U. S., at 1 93, his concur

-

——————

7 While Justice O’Conno r didnot defi ne precisely what she meant by
“ d irectevidence,” we cont r a s t ed s u ch evidence wit hcircum s t a nt ia l evidence in Dese rt Palace, Inc. v. Costa , 53 9 U. S. 90 (20 03). Th a t Justic e O’ Connormigh t hav eintendedadifferent defi nition does not affec tmyc o nclu sion , as I do n o t believ ea plain t iff i s r e qu ir ed to in tr o duce any special type of evidence toobtain a mix e d-motiv e s instr u c t ion.10 GROS S v. FBL FINANCIAL SERVI CES, INC. S TEVENS , J., di s s e nting 

### rence is properly understood as controlling, and he, like the plurality, did not require the introducti on of direct evidence. Any questions raised by Pri ce Wa terhouse as to a direct evidence requirement were se ttled by this Court’s unani

mous decision in De se rtPalac e , 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 sta t ute did not mention, much less require, a heightened showing through di rect evidence and that “Congre ss has been unequivocal when imposing hei ghtened proof require

ments.” 53 9 U. S., at 99. The statute’s silence withre spect to direct evidence, we held, meant that “we should not depart from the ‘[c]onventionalrul[e] of civil litigation

. . . [that] requires a p l aintiff to prove his case by a pre

ponderance of the evidence’, .

. . using ‘direct or circum

stantial evidence.’ ” Ibid. (quoting Pric e Wa te rhouse , 490 U. S., at 253 (plurality opinion), a n d Postal Servic e Bd. of Governorsv. Aikens , 46 0 U. S. 711 (1983)). We also recog

nized the Court’s consi s tent acknowledgment of the utility of circumst antial evidence in discrimination c a ses. Our anal ysis in De se rt Palac e applies with equal force to the ADEA. Cf. ante , at 9–10, n. 4. As with the 199 1 amendments to Title VII, no lan guage in the ADEA im

poses a heightened direct evidence requirem e nt, and we have specifically recognized the utility of ci rcumstanti a l evidence in ADEA cas e s. See Re eves , 530 U. S., at 14 7 (cited by Deser t Palac e , 539 U. S., at 99–100). Moreover, in HazenP aper Co. , we held that an awa r d of liquidated damages for a “willful” violationof the ADEA did not require proof of the employer’s motivation through di r e ct evidence, 5 07 U. S., at 615, and we have sim i larly rejecte d the imposition of speci a l evidentiary rules in other ADEA cases. See, e.g. , Swi e rkiewicz v. Sorema N. A. , 534 U. S.11 Cite as: 55 7 U

. S. ____ (2009) S TEVENS , J., di s s e nting 

### 506 (2002); O’Connor v. Consolidated Coin Ca terers Corp. , 517 U. S. 308 (1996). Des ert P a lace thus confirms th e answer pro vided by the plurality and Jus tice White in Price Wa te rhouse:An ADEA plaintiff neednot present direct evid ence of discrimi nation to obtain a mixed

motives instruction. IV The Court’s endorsement of a different construction of the same critical lang uage in the ADEA andTitle VII is both unwise and incon s istent with settled la w. The but

for standar d the Courtadopts wa s rejected by this Cour t in Price Wate rhousea n d by Congress in the Civil Righ ts Act of 1991

. Yet today the Court resurrects the standard in an unab ashed display of judicial lawmaking. I resp ect

fully dissen t
._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009) B REYER , J., diss enting 

# SUPREME CO URT O F THE UNI TED STATES
No. 08–4 41 

### JACK GROSS, PETITIONER v. F B L FINANCIAL S E RVIC ES , IN C

. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE EIGHTH CIRCUIT [Ju n e18, 2009 ] 

### J USTICE 

### B REYER 

### , wit hwhom J USTICE 

### S O U TER 

### and J USTICE 

### G IN S B UR G

### join, dissentin g. I agree with J USTIC E 

### S TEVE NS 

### t hat mixed- motive in

structions are approp riate in the Age Discrimination in Employment Act conte x t. An d I join his opinion. The Court reject s this conclusion on the ground th at the word s “because of” require a plaintiff to prove that age was th e “but-for” cause of hi s employer’s adverse employme nt action. Ante , at 7. But the majority does not explain wh y this is so. The words “because of” do not inherently re

quire a showing of “bu t -for” causation, and I see no reason to read them to require such a showing. It is one thing to require a t y picaltortplaintiff to sh o w “but-for” ca usation. In that context, reasonably objective scientific or commonsense th eories of physical causation make the concept of “but-for” causation comparatively easy to und erstand and relatively easy to ap ply. But it is an entirely different matter to det e rmine a “but-for” rela

tion when we consider, not physic al forces, but the min d

related characterizatio n s thatco nstitute motive. Some

times we speak of determining or d i scoverin g motives, but more often we ascribe motives, after an event, to an indi

vidual in light of the individual’s thoughts and other circumstan ces present at the tim e of decision. In a ca se where we characterize an employer’s actions as havin g2 GROS S v. FBL FINANCIAL SERVI CES, INC. B REYER , J., diss enting 

### been taken out of multiple motives, say, both because th e employee was old and because he wore loud clothing, to apply “but-for” causati o n is to en gage in a hypothetica l inquiry about what wo uld have ha ppened if th e employer’ s thoughts and other circumstances had been different. The answer to this hypothetical inquiry will oftenbe far from obvious, an d, since the employeelik ely k n ows less tha n does the e m ployer about what the employer was think i ng at the time, the employer will often be in a stronger posi

tion than the employee to provide the answer. All that a plaintiff can know for certain in such a con

text is thatthe forbidden motive did play arole in the employer’s decision. And the fa ct that a jury has found that age did play a role in the decision justifi e s the use of the word “because,” i.e ., the employer dismissed the em

ployee beca use of h i s age (and other things). See Price Wa terhous ev. Ho pkins , 490 U. S. 228, 23 9–242 (198 9) (plurality o p inion). I therefore would see nothing wrong in concluding that the plaintiff has establisheda violationof the statute. But the law need not automatically assess liability in these circumstances. In Price Wate rhouse , the pluralit y recognized an affirmative defense where the defendant could show that the employee woul d 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 b e cause the employer can show that he would have dismissed the employee anyway in the hypothetical circumsta n ce in which his age-related motive was absent. And it makes sens e that this would be an affirmative defense, rather than part of the s h owing of a violation, p r ecisely because the d e fendant is in a b e tter position than the plaintiff to establish how he would have acted in th is hypothetical situation. See id. , at 242; cf. ante , at 6 (S TEVE NS 

### , J ., dissenting) (describing the Title VII framework). I cansee nothing unfair orimpractica l3 Cite as: 55 7 U

. S. ____ (2009) B REYER , J., diss enting 

### about alloca ting the burdens of proof in this way. The instruction that the Distric tCourt ga ve seems appropriate and lawful. It says, in pertinent part: “Your verdi ct must be for plaintiff if all the follow

ing element s have bee nprov ed by the prepo n derance of the evide n ce:

. . . . . “[The] plaintiff’s age was a motiva ting factor in defen

dant’s decis i on to demote plaintiff. “However, your verdi c t must be for defendant .

. . if it has beenproved by th e prepo n derance of the evi

dence 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 p a rt or a role in the defendant’s decisi on to demote plaintiff. H o wever, 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 b y J USTICE 

### S T EVEN S 

### , I respectfully d i ssent.