Gross v. FBL Financial Services, Inc.

(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 ac
tion 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 demo
tion. 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 re
manded for a new trial, holding that the jury had been incorrectly in
structed under the standard established in Price Waterhouse v. Hop
kins, 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 employ
ment action because of both permissible and impermissible consid
erations—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 pro
duced some evidence that age was one motivating factor in that deci
sion. 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 applica
ble under one statute to a different statute without careful and criti
cal examination.” Federal Express Corp. v. Holowecki, 552 U. S. ___,
___. Unlike Title VII, which has been amended to explicitly author
ize 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 moti
vating 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 Ti
tle 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 implica
tions raised by disparate provisions are strongest” where the provi
sions 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 re
quirement 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 dispa
rate-treatment claim under this plain language, a plaintiff must
prove that age was the “but-for” cause of the employer’s adverse deci
sion. 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 previ
ously 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 inter
pretation 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 per
ceivable benefit to extending its framework to ADEA claims. Cf. Con
tinental 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, Wash
ington, 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 reas
signed to the position of claims project coordinator. At
that same time, FBL transferred many of Gross’ job re
sponsibilities to a newly created position—claims admini
stration 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 compensa
tion, Gross considered the reassignment a demotion be
cause of FBL’s reallocation of his former job responsibili
ties 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 em
ployee “because of such individual’s age.” 29 U. S. C.
§623(a). The case proceeded to trial, where Gross intro
duced evidence suggesting that his reassignment was
based at least in part on his age. FBL defended its deci
sion 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 Water
house, 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 (plural
ity opinion). The Price Waterhouse decision was splin
tered. Four Justices joined a plurality opinion, see id., at
231–258, Justices White and O’Connor separately con
curred 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 “moti
vating” 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 (plu
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 must present “direct evidence that an
illegitimate criterion was a substantial factor in the [em
ployment] decision.” Id., at 276.
In accordance with Circuit precedent, the Court of Ap
peals identified Justice O’Connor’s opinion as controlling.
See 526 F. 3d, at 359 (citing Erickson v. Farmland Indus
tries, 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 find
ing by a reasonable fact finder that an illegitimate crite
rion 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 presen
tation 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 illegiti
mate 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 pre
ponderance 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 deter
mining 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 dis
crimination 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 rele
vant 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 ex
plained 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) (pro
viding that “an unlawful employment practice is estab
lished when the complaining party demonstrates that
——————
1 Although the parties did not specifically frame the question to in

clude 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 motivat
ing 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 estab
lish 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 provi
sion but not another, it is presumed to have acted inten
tionally. 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 “con
sidered 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 con
struction must begin with the language employed by
Congress and the assumption that the ordinary meaning
of that language accurately expresses the legislative pur
pose.” Engine Mfrs. Assn. v. South Coast Air Quality
Management Dist., 541 U. S. 246, 252 (2004) (internal
quotation marks omitted). The ADEA provides, in rele
vant 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 re
spect 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 Dy
namics 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 mean
ing of the ADEA’s requirement that an employer took
adverse action “because of” age is that age was the “rea
son” 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 decisionmak
ing] process and had a determinative influence on the
outcome” (emphasis added)). To establish a disparate
treatment 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 neces
sary 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 impracti

cal” 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. In
deed, 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 noth
ing 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 usu
ally falls, upon the party seeking relief” (internal quota
tion 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).
4 Because we hold that ADEA plaintiffs retain the burden of persua

sion 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 inter
pretation 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 “intro
duc[e] a qualification into the ADEA that is not found in
its text”); Meacham, supra, at ___ (slip op., at 16) (explain
ing 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 em
ployer’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 subsec
tions 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 Water

house 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 retro
spect, 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 Asso
ciates, 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 notwith
standing the verdict or reversed on appeal more frequently
than jury verdicts generally”). Thus, even if Price Water
house 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
——————
6 Gross 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) (constitu
tional 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 shift
ing should apply as the Court instead deferred to the National Labor
Relation Board’s determination that such a framework was appropri
ate. 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 preponder
ance 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 read
ing 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 his
tory, 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 respon
dent’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 prepa
ration time for those likely affected and wishing to partici
pate.’ ” 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 dis
criminate against any individual with respect to his com
——————
1 “Thequestion 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.
2 The 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 unlaw
ful 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 “ ‘be
cause 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 deci
sion.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
——————
3 Although 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 “be
cause 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 interpreta
tions of Title VII’s language apply “with equal force in the
context of age discrimination, for the substantive provi
sions 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
——————
4 We 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).
5 See 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 prece
dents. 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 determina
tive 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 moti
vated by factors other than age,” there is no violation, id.,
at 611 (emphasis altered). So too, we indicated the “possi
bility 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. Sander
son 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 Commu
nity 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 rea
sons, 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 Water
house 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 elimi
nated the affirmative defense to liability that Price Water
house 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 interpreta
tion of the plaintiff’s burden of proof, rejecting the dis
sent’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 na
tional 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
——————
6 There 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 discrimi
nation, 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 consid
ered 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 Water
house 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 Water
house (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,” includ
ing 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 motivating
factor test was consistent with its original intent in enact
ing 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. Be
cause 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 diffi
culties 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 stan
dard is unwarranted. Price Waterhouse repudiated that
standard 20 years ago, and Congress’ response to our
decision further militates against the crabbed interpreta
tion the Court adopts today. The answer to the question
the Court has elected to take up—whether a 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 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 Jus
tice 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 Water
house 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
——————
7 While 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 intro
duce 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 unani
mous 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 require
ments.” 539 U. S., at 99. The statute’s silence with re
spect 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 pre
ponderance of the evidence’, . . . using ‘direct or circum
stantial 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 recog
nized 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 im
poses 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 mixed
motives 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 but
for 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 respect
fully 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 in
structions 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 re
quire 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” rela
tion when we consider, not physical forces, but the mind
related characterizations that constitute motive. Some
times we speak of determining or discovering motives, but
more often we ascribe motives, after an event, to an indi
vidual 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 posi
tion than the employee to provide the answer.
All that a plaintiff can know for certain in such a con
text 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 em
ployee 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 follow
ing elements have been proved by the preponderance
of the evidence:
. . . . .
“[The] plaintiff’s age was a motivating factor in defen
dant’s decision to demote plaintiff.
“However, your verdict must be for defendant . . . if
it has been proved by the preponderance 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 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.