concurring.
I concur in the judgment in this case and am almost entirely in agreement with my colleagues in the Majority, but I write separately to express my view that, contrary to dicta in footnote five of the Majority Opinion, the Supreme Court’s decision in Gross v. F.B.L. Financial Services, — U.S.-, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), may well have an impact on our precedent concerning the analytical approach to be taken in employment discrimination cases under § 1981. While I cannot say with certainty, particularly when the parties have not joined the issue, that the analysis in Gross does have implications for § 1981 cases, I am not as sure as the Majority appears to be that it does not.
In Gross, a case concerning the Age Discrimination in Employment Act (“ADEA”), the Supreme Court bypassed the issue on which it had originally granted certiorari, i.e., “whether a plaintiff must ‘present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case[,]’” id. at 2348 (quoting petition for certiorari), and went to the more fundamental issue of “whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.” Id. The Court decided that the burden-shifting framework that had developed in Title VII cases under Price Waterhouse v. Hopkins, *186490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), is not applicable in ADEA cases, despite years of lower court precedent to the contrary, e.g., King v. United States, 553 F.3d 1156, 1160 (8th Cir.2009) (“Under the ADEA, employers are forbidden from taking adverse employment actions against employees because of their age.... Where the plaintiff presents direct evidence of discrimination, the court analyzes her claim under the mixed-motives framework established in Price Waterhouse v. Hopkins.... ”); Machinchick v. PB Power, Inc., 398 F.3d 345 (5th Cir. 2005) (Plaintiffs proceeding under the ADEA “presenting direct evidence of age discrimination may proceed under the ‘mixed-motive’ analysis set forth in Price Waterhouse v. Hopkins.”)] E.E.O.C. v. Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 164 n. 2 (4th Cir.2004) (noting that, following the amendment of Title VII, “ADEA mixed-motive cases remain subject to the burden-shifting rules of Price Waterhouse.” (citation omitted)); Vesprini v. Shaw Contract Flooring Services, Inc., 315 F.3d 37, 40-41 (1st Cir.2002) (applying Price Waterhouse to ADEA claim).
Laying special emphasis on avoiding assumptions in statutory interpretation, the Supreme Court said that it had to be “careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Gross, 129 S.Ct. at 2349 (quoting Federal Express Corp. v. Holowecki, 522 U.S. 389, 128 S.Ct. 1147, 1153, 170 L.Ed.2d 10 (2008)). Then, looking to the language of the ADEA, it determined that, since the statute says “[i]t shall be unlawful ... to fail or refuse to hire or to discharge any individual or otherwise discriminate ... because of such individual’s age[,]” 29 U.S.C. § 623(a)(1), and since “[t]he words ‘because of mean ‘by reason of: on account of[,]’ ” Gross, 129 S.Ct at 2350 (quoting 1 Webster’s Third New International Dictionary 194 (1966)), the plain meaning of the ADEA’s statutory text requires a pure “but for” causation standard, with the plaintiff bearing the burden of proving by a preponderance of the evidence that, but for the defendant-employer’s unlawful motive, the complained-of employment action would not have occurred. Id. at 2351. That straight-forward allocation of the burden of proof is in keeping with “the ordinary default rule” that, when a statute is silent about the burden of proof, “plaintiffs bear the risk of failing to prove their claims.” Id. (internal quotation and citations omitted).
In the present case, the Majority concludes that, despite the foregoing instruction from Gross, Title VII-style burden shifting naturally controls in § 1981 cases. As the Majority sees it, because § 1981 does not contain the same “because of’ clause found in the ADEA, Gross is simply inapposite. There is an irony here. While recognizing a textual distinction between the ADEA and § 1981, the Majority’s approach ignores the textual distinctions between Title VII and § 1981. Moreover, it ignores the fundamental instruction in Gross that analytical constructs are not to be simply transposed from one statute to another without a thorough and thoughtful analysis. Even when there has been such analysis, later arising Supreme Court precedent may require reevaluation.
It is true, of course, that we are bound by our own precedent and, as the Majority rightly recognizes, our prior opinions indicate that § 1981 claims must be analyzed under the same framework as Title VII claims were under Price Waterhouse before the 1991 amendments to Title VII.8 *187Maj. Op. at 182 (citing Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 499 (3d Cir.1999)). Nevertheless, it seems quite possible that, given the broad language chosen by the Supreme Court in Gross, a critical re-examination of our precedent may be in order.9 I do not presume to say how any such re-examination may turn out. I only note that, though my colleagues are untroubled by § 1981’s lack of a mixed-motive provision and though they assert that the Price Waterhouse analysis may be grafted onto § 1981 because the “plain language of the statutory text suggests” as much (Maj. Op. at n. 5), I am less able to perceive the suggestion they see or to accept that it trumps what the statute actually says.
Since the impact of Gross on our § 1981 precedents has not been tested by the adversarial process and we are thus without a proper basis for considering how, if at all, a change in the allocation of the burden of proof might affect this case, I am left to agree with the Majority that, consistent with the Price Waterhouse standard, Brown has presented direct evidence of discrimination and, under a mixed-motive analysis, has raised an issue that must be considered by a jury. In short, because Brown has raised a triable issue of fact as to whether Craftmatic’s decision to terminate her was tainted by racial animus, the burden will be on Craftmatic to demonstrate to a jury that it would have made the same employment decision irrespective of Brown’s race.
. The 1991 Civil Rights Act amended Title VII to allow for mixed-motive claims where a *187plaintiff demonstrates that race was "a motivating factor” for the employer's challenged action. 42 U.S.C. § 2000e-2(m). No analogous amendment was made to section 1981. Rather than viewing the lack of Congressional action as an oversight, Gross instructs that we should regard Congress's decision to amend one statutory provision without amending a separate provision as deliberate. Gross, 129 S.Ct. at 2349 ("We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.”); cf. Glanzman v. Metropolitan Mgmt. Corp., 391 F.3d 506, 512 n. 3 (3d Cir.2004) (concluding that "the Civil Rights Act of 1991 does not apply to ADEA cases”). Much as the decision not to amend the ADEA under the Civil Rights Act of 1991 was considered instructive in Gross, it has been seen to be so with respect to § 1981. See Mabra v. United Food & Commercial Workers Local Union No.1996, 176 F.3d 1357, 1358 (11th Cir.1999) (”[T]he 1991 mixed-motive amendments to Title VII do not apply to § 1981 claims.”).
. Beyond its statutory analysis of the ADEA and the implications that may carry for § 1981 cases, the Court also raised questions about burden-shifting in general, saying “[w]hatever the deficiencies of Price Water-house in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply.” Gross, 129 S.Ct. at 2352.