UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER v. NASSAR
Dr. Naiel Nassar, who is of Middle Eastern descent, was hired by the University of Texas Southwestern Medical Center (UTSW) in 1995 to work at the Amelia Court Clinic (Clinic), which specializes in HIV/AIDS treatment. After three years there, he left to pursue additional training and returned in 2001 as an Assistant Professor of Internal Medicine and Infectious Diseases and Associate Medical Director of the Clinic. His immediate supervisor at the Clinic was Dr. Philip Keiser, whose supervisor at UTSW was Dr. Beth Levine. After being hired in 2004, Levine immediately began inquiring into Nassar’s productivity and billing practices. In 2005, after interviewing a candidate who was of Middle Eastern descent, Levine stated in Nassar’s presence, “Middle Easterners are lazy.” In 2006, after hiring the candidate, Levine made a similar statement in Keiser’s presence. Keiser informed Nassar of these comments as well as the fact that Levine scrutinized Nassar’s productivity more than any other doctor. Around this time, Nassar applied for a promotion that Levine actively undermined. In 2006, Nassar resigned from the UTSW faculty and cited Levine’s harassment and the creation of an unhealthy work environment in his resignation letter. Nassar resigned with the understanding that he would be offered a position at the Amelia Court Clinic unaffiliated with the UTSW, but the Clinic was forced to withdraw its offer after heavy opposition from the UTSW faculty, who have an agreement with the Clinic regarding positions to be filled by faculty doctors.
In 2008, Nassar sued UTSW under Title VII of the Civil Rights Act of 1964 and argued that UTSW had constructively discharged and retaliated against him. The jury found in favor of Nassar and awarded him back pay and compensatory damages. The U.S. Court of Appeals for the Fifth Circuit affirmed in part and reversed in part, holding that there was sufficient evidence to support the retaliation claim but insufficient evidence to support the claim of constructive discharge.
Does the retaliation provision of Title VII of the Civil Rights Act of 1964 require a plaintiff to prove that an employer would not have taken an action but for the existence of an improper motive, or does the provision require only proof that the employer had mixed motives for taking an action?
Legal provision: Civil Rights Act of 1964
The retaliation provision of Title VII requires the plaintiff to prove than an employer would not have taken an action but for the existence of improper motives. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that there must be a demonstrable causal link between the injury sustained and the wrong alleged. A standard understanding of causation supports the view that an action cannot be the cause of an event unless it can be shown that the event would not have occurred without the action in question. Because there is no language in the retaliation provision that states otherwise, it must be assumed that Congress intended to support the standard understanding of causation. The Court also held that lessening the causation standard would increase the number of frivolous claims and decrease the ability of employers and the courts to deal with the pressing issues of real workplace harassment.
Justice Ruth Bader Ginsburg wrote a dissenting opinion in which she argued that the majority’s decision creates an unnecessary dichotomy between discrimination cases and retaliation cases by restricting retaliation cases to a stricter standard of proof. In doing so, the majority’s opinion ignores extensive judicial precedent that supports the close connection between anti-discrimination and anti-retaliation provisions. Additionally, there is no evidence that Congress intended to provide less protection from discrimination than from retaliation, as the majority’s reading of the provision suggests. She also argued that the “but-for” causation test is particularly difficult to implement in employment discrimination cases as it requires trial courts to reach conclusions as to what would have happened had the employer’s thoughts been different. Justice Stephen G. Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, PETITIONER v. NAIEL NASSAR
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 24, 2013]
Justice Kennedy delivered the opinion of the Court.
When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged. The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers.
Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation’s workplaces and in all sectors of economic endeavor. This opinion discusses the causation rules for two categories of wrongful employer conduct prohibited by Title VII. The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. See §2000e–2(a). The second type of conduct is employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination. See §2000e–3(a).
An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. This principle is the result of an earlier case from this Court, Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) , and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§2000e–2(m), 2000e–5(g)(2)(B). The question the Court must answer here is whether that lessened causation standard is applicable to claims of unlawful employer retaliation under §2000e–3(a).
Although the Court has not addressed the question of the causation showing required to establish liability for a Title VII retaliation claim, it has addressed the issue of causation in general in a case involving employer discrimination under a separate but related statute, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §623. See Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009) . In Gross, the Court concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. The holding and analysis of that decision are instructive here.I
Petitioner, the University of Texas Southwestern Medical Center (University), is an academic institution within the University of Texas system. The University specializes in medical education for aspiring physicians, health professionals, and scientists. Over the years, the University has affiliated itself with a number of healthcare facilities including, as relevant in this case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the University, the Hospital permits the University’s students to gain clinical experience working in its facilities. The agreement also requires the Hospital to offer empty staff physician posts to the University’s faculty members, see App. 361–362, 366, and, accordingly, most of the staff physician positions at the Hospital are filled by those faculty members.
Respondent is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a member of the University’s faculty and a staff physician at the Hospital. He left both positions in 1998 for additional medical education and then returned in 2001 as an assistant professor at the University and, once again, as a physician at the Hospital.
In 2004, Dr. Beth Levine was hired as the University’s Chief of Infectious Disease Medicine. In that position Levine became respondent’s ultimate (though not direct) superior. Respondent alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that “ ‘Middle Easterners are lazy.’ ” 674 F. 3d 448, 450 (CA5 2012). On different occasions during his employment, respondent met with Dr. Gregory Fitz, the University’s Chair of Internal Medicine and Levine’s supervisor, to complain about Levine’s alleged harassment. Despite obtaining a promotion with Levine’s assistance in 2006, respondent continued to believe that she was biased against him. So he tried to arrange to continue working at the Hospital without also being on the University’s faculty. After preliminary negotiations with the Hospital suggested this might be possible, respondent resigned his teaching post in July 2006 and sent a letter to Dr. Fitz (among others), in which he stated that the reason for his departure was harassment by Levine. That harassment, he asserted, “ ‘stems from . . . religious, racial and cultural bias against Arabs and Muslims.’ ” Id., at 451. After reading that letter, Dr. Fitz expressed consternation at respondent’s accusations, saying that Levine had been “publicly humiliated by th[e] letter” and that it was “very important that she be publicly exonerated.” App. 41.
Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agreement’s requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer.
After exhausting his administrative remedies, respondent filed this Title VII suit in the United States District Court for the Northern District of Texas. He alleged two discrete violations of Title VII. The first was a status-based discrimination claim under §2000e–2(a). Respondent alleged that Dr. Levine’s racially and religiously motivated harassment had resulted in his constructive discharge from the University. Respondent’s second claim was that Dr. Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine’s harassment, in violation of §2000e–3(a). 674 F. 3d, at 452. The jury found for respondent on both claims. It awarded him over $400,000 in backpay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000.
On appeal, the Court of Appeals for the Fifth Circuit affirmed in part and vacated in part. The court first concluded that respondent had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury’s verdict. The court affirmed as to the retaliation finding, however, on the theory that retaliation claims brought under §2000e–3(a)—like claims of status-based discrimination under §2000e–2(a)—require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox Corp., 602 F. 3d 320, 330 (CA5 2010)). It further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. The Court of Appeals then remanded for a redetermination of damages in light of its decision to vacate the constructive-discharge verdict.
Four judges dissented from the court’s decision not to rehear the case en banc, arguing that the Circuit’s application of the motivating-factor standard to retaliation cases was “an erroneous interpretation of [Title VII] and controlling caselaw” and should be overruled en banc. 688 F. 3d 211, 213–214 (CA5 2012) (Smith, J., dissenting from denial of rehearing en banc).
Certiorari was granted. 568 U. S. ___ (2013).II A
This case requires the Court to define the proper standard of causation for Title VII retaliation claims. Causation in fact—i.e., proof that the defendant’s conduct did in fact cause the plaintiff’s injury—is a standard requirement of any tort claim, see Restatement of Torts §9 (1934) (definition of “legal cause”); §431, Comment a (same); §279, and Comment c (intentional infliction of physical harm); §280 (other intentional torts); §281(c) (negligence). This includes federal statutory claims of workplace discrimination. Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (In intentional-discrimination cases, “liability depends on whether the protected trait” “actually motivated the employer’s decision” and “had a determinative influence on the outcome”); Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 711 (1978) (explaining that the “simple test” for determining a discriminatory employment practice is “whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different” (internal quotation marks omitted)).
In the usual course, this standard requires the plaintiff to show “that the harm would not have occurred” in the absence of—that is, but for—the defendant’s conduct. Restatement of Torts §431, Comment a (negligence); §432(1), and Comment a (same); see §279, and Comment c (intentional infliction of bodily harm); §280 (other intentional torts); Restatement (Third) of Torts: Liability for Physical and Emotional Harm §27, and Comment b (2010) (noting the existence of an exception for cases where an injured party can prove the existence of multiple, independently sufficient factual causes, but observing that “cases invoking the concept are rare”). See also Restatement (Second) of Torts §432(1) (1963 and 1964) (negligence claims); §870, Comment l (intentional injury to another); cf. §435a, and Comment a (legal cause for intentional harm). It is thus textbook tort law that an action “is not regarded as a cause of an event if the particular event would have occurred without it.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285 (2003) ; Carey v. Piphus, 435 U. S. 247 –258 (1978).B
Since the statute’s passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them—race, color, religion, sex, and national origin—are personal characteristics and are set forth in §2000e–2. (As noted at the outset, discrimination based on these five characteristics is called status-based discrimination in this opinion.) And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct—the employee’s opposition to employment discrimination, and the employee’s submission of or support for a complaint that alleges employment discrimination—are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, §2000e–3(a).
Under the status-based discrimination provision, it is an “unlawful employment practice” for an employer “to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a). In its 1989 decision in Price Waterhouse, the Court sought to explain the causation standard imposed by this language. It addressed in particular what it means for an action to be taken “because of” an individual’s race, religion, or nationality. Although no opinion in that case commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-based discrimination if he or she could show that one of the prohibited traits was a “motivating” or “substantial” factor in the employer’s decision. 490 U. S., at 258 (plurality opinion); id., at 259 (White, J., concurring in judgment); id., at 276 (O’Connor, J., concurring in judgment). If the plaintiff made that showing, the burden of persuasion would shift to the employer, which could escape liability if it could prove that it would have taken the same employment action in the absence of all discriminatory animus. Id., at 258 (plurality opinion); id., at 259–260 (opinion of White, J.); id., at 276–277 (opinion of O’Connor, J.). In other words, the employer had to show that a discriminatory motive was not the but-for cause of the adverse employment action.
Two years later, Congress passed the Civil Rights Act of 1991 (1991 Act), 105Stat. 1071. This statute (which had many other provisions) codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree. The legislation first added a new subsection to the end of §2000e–2, i.e., Title VII’s principal ban on status-based discrimination. See §107(a), 105Stat. 1075. The new provision, §2000e–2(m), states:
“[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”
This, of course, is a lessened causation standard.
The 1991 Act also abrogated a portion of Price Waterhouse’s framework by removing the employer’s ability to defeat liability once a plaintiff proved the existence of an impermissible motivating factor. See Gross, 557 U. S., at 178, n. 5. In its place, Congress enacted §2000e–5(g)(2), which provides:
“(B) On a claim in which an individual proves a violation under section 2000e–2(m) of this title and [the employer] demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court—
“(i) may grant declaratory relief, injunctive relief . . . and [limited] attorney’s fees and costs . . . ; and
“(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment . . . .”
So, in short, the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. Under that new regime, a plaintiff could obtain declaratory relief, attorney’s fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer’s proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order. See Gross, 557 U. S., at 178, n. 5; see also id., at 175, n. 2, 177, n. 3.
After Price Waterhouse and the 1991 Act, considerable time elapsed before the Court returned again to the meaning of “because” and the problem of causation. This time it arose in the context of a different, yet similar statute, the ADEA, 29 U. S. C. §623(a). See Gross, supra. Much like the Title VII statute in Price Waterhouse, the relevant portion of the ADEA provided that “ ‘[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.’ ” 557 U. S., at 176 (quoting §623(a)(1); emphasis and ellipsis in original).
Concentrating first and foremost on the meaning of the phrase “ ‘because of . . . age,’ ” the Court in Gross explained that the ordinary meaning of “ ‘because of’ ” is “ ‘by reason of’ ” or “ ‘on account of.’ ” Id., at 176 (citing 1 Webster’s Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966); emphasis in original). Thus, the “requirement that an employer took adverse action ‘because of’ age [meant] that age was the ‘reason’ that the employer decided to act,” or, in other words, that “age was the ‘but-for’ cause of the employer’s adverse decision.” 557 U. S., at 176. See also Safeco Ins. Co. of America v. Burr, 551 U. S. 47 –64, and n. 14 (2007) (noting that “because of” means “based on” and that “ ‘based on’ indicates a but-for causal relationship”); Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 –266 (1992) (equating “by reason of” with “ ‘but for’ cause”).
In the course of approving this construction, Gross declined to adopt the interpretation endorsed by the plurality and concurring opinions in Price Waterhouse. Noting that “the ADEA must be ‘read . . . the way Congress wrote it,’ ” 557 U. S., at 179 (quoting Meacham v. Knolls Atomic Power Laboratory, 554 U. S. 84, 102 (2008) ), the Court concluded that “the textual differences between Title VII and the ADEA” “prevent[ed] us from applying Price Waterhouse . . . to federal age discrimination claims,” 557 U. S., at 175, n. 2. In particular, the Court stressed the congressional choice not to add a provision like §2000e–2(m) to the ADEA despite making numerous other changes to the latter statute in the 1991 Act. Id., at 174–175 (citing EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991) ); 557 U. S., at 177, n. 3 (citing 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 270 (2009) ).
Finally, the Court in Gross held that it would not be proper to read Price Waterhouse as announcing a rule that applied to both statutes, despite their similar wording and near-contemporaneous enactment. 557 U. S., at 178, n. 5. This different reading was necessary, the Court concluded, because Congress’ 1991 amendments to Title VII, including its “careful tailoring of the ‘motivating factor’ claim” and the substitution of §2000e–5(g)(2)(B) for Price Waterhouse’s full affirmative defense, indicated that the motivating-factor standard was not an organic part of Title VII and thus could not be read into the ADEA. See 557 U. S., at 178, n. 5.
In Gross, the Court was careful to restrict its analysis to the statute before it and withhold judgment on the proper resolution of a case, such as this, which arose under Title VII rather than the ADEA. But the particular confines of Gross do not deprive it of all persuasive force. Indeed, that opinion holds two insights for the present case. The first is textual and concerns the proper interpretation of the term “because” as it relates to the principles of causation underlying both §623(a) and §2000e–3(a). The second is the significance of Congress’ structural choices in both Title VII itself and the law’s 1991 amendments. These principles do not decide the present case but do inform its analysis, for the issues possess significant parallels.III A
As noted, Title VII’s antiretaliation provision, which is set forth in §2000e–3(a), appears in a different section from Title VII’s ban on status-based discrimination. The antiretaliation provision states, in relevant part:
“It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
This enactment, like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Cf. 29 U. S. C. §623(a)(1). Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. See Gross, supra, at 176.
The principal counterargument offered by respondent and the United States relies on their different understanding of the motivating-factor section, which—on its face—applies only to status discrimination, discrimination on the basis of race, color, religion, sex, and national origin. In substance, they contend that: (1) retaliation is defined by the statute to be an unlawful employment practice; (2) §2000e–2(m) allows unlawful employment practices to be proved based on a showing that race, color, religion, sex, or national origin was a motivating factor for—and not necessarily the but-for factor in—the challenged employment action; and (3) the Court has, as a matter of course, held that “retaliation for complaining about race discrimination is ‘discrimination based on race.’ ” Brief for United States as Amicus Curiae 14; see id., at 11–14; Brief for Respondent 16–19.
There are three main flaws in this reading of §2000e–2(m). The first is that it is inconsistent with the provision’s plain language. It must be acknowledged that because Title VII defines “unlawful employment practice” to include retaliation, the question presented by this case would be different if §2000e–2(m) extended its coverage to all unlawful employment practices. As actually written, however, the text of the motivating-factor provision, while it begins by referring to “unlawful employment practices,” then proceeds to address only five of the seven prohibited discriminatory actions—actions based on the employee’s status, i.e., race, color, religion, sex, and national origin. This indicates Congress’ intent to confine that provision’s coverage to only those types of employment practices. The text of §2000e–2(m) says nothing about retaliation claims. Given this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope. Gardner v. Collins, 2 Pet. 58, 93 (1829) (“What the legislative intention was, can be derived only from the words they have used; and we cannot speculate beyond the reasonable import of these words”); see Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 8).
The second problem with this reading is its inconsistency with the design and structure of the statute as a whole. See Gross, 557 U. S., at 175, n. 2, 178, n. 5. Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices. See id., at 177, n. 3. When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within §2000e–2, which contains Title VII’s ban on status-based discrimination, §§2000e–2(a) to (d), (l), and says nothing about retaliation. See 1991 Act, §107(a), 105Stat. 1075 (directing that “§2000e–2 . . . [be] further amended by adding at the end the following new subsection . . . (m)”). The title of the section of the 1991 Act that created §2000e–2(m)—“Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices”—also indicates that Congress determined to address only claims of status-based discrimination, not retaliation. See §107(a), id., at 1075.
What is more, a different portion of the 1991 Act contains an express reference to all unlawful employment actions, thereby reinforcing the conclusion that Congress acted deliberately when it omitted retaliation claims from §2000e–2(m). See Arabian American Oil Co., 499 U. S., at 256 (congressional amendment of ADEA on a similar subject coupled with congressional failure to amend Title VII weighs against conclusion that the ADEA’s standard applies to Title VII); see also Gross, supra, at 177, n. 3. The relevant portion of the 1991 Act, §109(b), allowed certain overseas operations by U. S. employers to engage in “any practice prohibited by section 703 or 704,” i.e., §2000e–2 or §2000e–3, “if compliance with such section would cause such employer . . . to violate the law of the foreign country in which such workplace is located.” 105Stat. 1077.
If Congress had desired to make the motivating-factor standard applicable to all Title VII claims, it could have used language similar to that which it invoked in §109. See Arabian American Oil Co., supra, at 256. Or, it could have inserted the motivating-factor provision as part of a section that applies to all such claims, such as §2000e–5, which establishes the rules and remedies for all Title VII enforcement actions. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000) . But in writing §2000e–2(m), Congress did neither of those things, and “[w]e must give effect to Congress’ choice.” Gross, supra, at 177, n. 3.
The third problem with respondent’s and the Government’s reading of the motivating-factor standard is in its submission that this Court’s decisions interpreting federal antidiscrimination law have, as a general matter, treated bans on status-based discrimination as also prohibiting retaliation. In support of this proposition, both respondent and the United States rely upon decisions in which this Court has “read [a] broadly worded civil rights statute . . . as including an antiretaliation remedy.” CBOCS West, Inc. v. Humphries, 553 U. S. 442 –453 (2008). In CBOCS, for example, the Court held that 42 U. S. C. §1981—which declares that all persons “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens”—prohibits not only racial discrimination but also retaliation against those who oppose it. 553 U. S., at 445. And in Gómez-Pérez v. Potter, 553 U. S. 474 (2008) , the Court likewise read a bar on retaliation into the broad wording of the federal-employee provisions of the ADEA. Id., at 479, 487 (“All personnel actions affecting [federal] employees . . . who are at least 40 years of age . . . shall be made free from any discrimination based on age,” 29 U. S. C. §633a(a)); see also Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 173, 179 (2005) ( 20 U. S. C. §1681(a) (Title IX)); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 , n. 3, 237 (1969) ( 42 U. S. C. §1982).
These decisions are not controlling here. It is true these cases do state the general proposition that Congress’ enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, even where the statute does not refer to retaliation in so many words. What those cases do not support, however, is the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for “retaliation.” For one thing, §2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII. The cases cited by respondent and the Government do not address rules of this sort, and those precedents are of limited relevance here.
The approach respondent and the Government suggest is inappropriate in the context of a statute as precise, complex, and exhaustive as Title VII. As noted, the laws at issue in CBOCS, Jackson, and Gómez-Pérez were broad, general bars on discrimination. In interpreting them the Court concluded that by using capacious language Congress expressed the intent to bar retaliation in addition to status-based discrimination. See Gómez-Pérez, supra, at 486–488. In other words, when Congress’ treatment of the subject of prohibited discrimination was both broad and brief, its omission of any specific discussion of retaliation was unremarkable.
If Title VII had likewise been phrased in broad and general terms, respondent’s argument might have more force. But that is not how Title VII was written, which makes it incorrect to infer that Congress meant anything other than what the text does say on the subject of retaliation. Unlike Title IX, §1981, §1982, and the federal-sector provisions of the ADEA, Title VII is a detailed statutory scheme. This statute enumerates specific unlawful employment practices. See §§2000e–2(a)(1), (b), (c)(1), (d) (status-based discrimination by employers, employment agencies, labor organizations, and training programs, respectively); §2000e–2(l) (status-based discrimination in employment-related testing); §2000e–3(a) (retaliation for opposing, or making or supporting a complaint about, unlawful employment actions); §2000e–3(b) (advertising a preference for applicants of a particular race, color, religion, sex, or national origin). It defines key terms, see §2000e, and exempts certain types of employers, see §2000e–1. And it creates an administrative agency with both rulemaking and enforcement authority. See §§2000e–5, 2000e–12.
This fundamental difference in statutory structure renders inapposite decisions which treated retaliation as an implicit corollary of status-based discrimination. Text may not be divorced from context. In light of Congress’ special care in drawing so precise a statutory scheme, it would be improper to indulge respondent’s suggestion that Congress meant to incorporate the default rules that apply only when Congress writes a broad and undifferentiated statute. See Gómez-Pérez, supra, at 486–488 (when construing the broadly worded federal-sector provision of the ADEA, Court refused to draw inferences from Congress’ amendments to the detailed private-sector provisions); Arabian American Oil Co., 499 U. S., at 256; cf. Jackson, supra, at 175 (distinguishing Title IX’s “broadly written general prohibition on discrimination” from Title VII’s “greater detail [with respect to] the conduct that constitutes discrimination”).
Further confirmation of the inapplicability of §2000e–2(m) to retaliation claims may be found in Congress’ approach to the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327. In the ADA Congress provided not just a general prohibition on discrimination “because of [an individual’s] disability,” but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination, see §§102(a), (b)(1)–(7), id., at 331–332 (codified at 42 U. S. C. §12112). And, most pertinent for present purposes, it included an express antiretaliation provision, see §503(a), 104Stat. 370 (codified at 42 U. S. C. §12203). That law, which Congress passed only a year before enacting §2000e–2(m) and which speaks in clear and direct terms to the question of retaliation, rebuts the claim that Congress must have intended to use the phrase “race, color, religion, sex, or national origin” as the textual equivalent of “retaliation.” To the contrary, the ADA shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so in clear textual terms.
The Court confronted a similar structural dispute in Lehman v. Nakshian, 453 U. S. 156 (1981) . The question there was whether the federal-employment provisions of the ADEA, 29 U. S. C. §633a, provided a jury-trial right for claims against the Federal Government. Nakshian, 453 U. S., at 157. In concluding that it did not, the Court noted that the portion of the ADEA that prohibited age discrimination by private, state, and local employers, §626, expressly provided for a jury trial, whereas the federal-sector provisions said nothing about such a right. Id., at 162–163, 168. So, too, here. Congress has in explicit terms altered the standard of causation for one class of claims but not another, despite the obvious opportunity to do so in the 1991 Act.B
The proper interpretation and implementation of §2000e–3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years—from just over 16,000 in 1997 to over 31,000 in 2012. EEOC, Charge Statistics FY 1997 Through FY 2012, http://www.eeoc.gov/eeoc/statistics/enforcement/ charges.cfm (as visited June 20, 2013, and available in Clerk of Court’s case file). Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race. See ibid.
In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. Cf. Vance v. Ball State Univ., post, at 9–11. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. See Brief for National School Boards Association as Amicus Curiae 11–22. Yet there would be a significant risk of that consequence if respondent’s position were adopted here.
The facts of this case also demonstrate the legal and factual distinctions between status-based and retaliation claims, as well as the importance of the correct standard of proof. Respondent raised both claims in the District Court. The alleged wrongdoer differed in each: In respondent’s status-based discrimination claim, it was his indirect supervisor, Dr. Levine. In his retaliation claim, it was the Chair of Internal Medicine, Dr. Fitz. The proof required for each claim differed, too. For the status-based claim, respondent was required to show instances of racial slurs, disparate treatment, and other indications of nationality-driven animus by Dr. Levine. Respondent’s retaliation claim, by contrast, relied on the theory that Dr. Fitz was committed to exonerating Dr. Levine and wished to punish respondent for besmirching her reputation. Separately instructed on each type of claim, the jury returned a separate verdict for each, albeit with a single damages award. And the Court of Appeals treated each claim separately, too, finding insufficient evidence on the claim of status-based discrimination.
If it were proper to apply the motivating-factor standard to respondent’s retaliation claim, the University might well be subject to liability on account of Dr. Fitz’s alleged desire to exonerate Dr. Levine, even if it could also be shown that the terms of the affiliation agreement precluded the Hospital’s hiring of respondent and that the University would have sought to prevent respondent’s hiring in order to honor that agreement in any event. That result would be inconsistent with the both the text and purpose of Title VII.
In sum, Title VII defines the term “unlawful employment practice” as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of §2000e–2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added §2000e–2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII’s detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.IV
Respondent and the Government also argue that applying the motivating-factor provision’s lessened causation standard to retaliation claims would be consistent with longstanding agency views, contained in a guidance manual published by the EEOC. It urges that those views are entitled to deference under this Court’s decision in Skidmore v. Swift & Co., 323 U. S. 134 (1944) . See National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 , n. 6 (2002). The weight of deference afforded to agency interpretations under Skidmore depends upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” 323 U. S., at 140; see Vance, post, at 9, n. 4.
According to the manual in question, the causation element of a retaliation claim is satisfied if “there is credible direct evidence that retaliation was a motive for the challenged action,” regardless of whether there is also “[e]vidence as to [a] legitimate motive.” 2 EEOC Compliance Manual §8–II(E)(1), pp. 614:0007–614:0008 (Mar. 2003). After noting a division of authority as to whether motivating-factor or but-for causation should apply to retaliation claims, the manual offers two rationales in support of adopting the former standard. The first is that “[c]ourts have long held that the evidentiary framework for proving [status-based] discrimination . . . also applies to claims of discrimination based on retaliation.” Id., at 614:0008, n. 45. Second, the manual states that “an interpretation . . . that permits proven retaliation to go unpunished undermines the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism.” Ibid.
These explanations lack the persuasive force that is a necessary precondition to deference under Skidmore. See 323 U. S., at 140; Vance, post, at 9, n. 4. As to the first rationale, while the settled judicial construction of a particular statute is of course relevant in ascertaining statutory meaning, see Lorillard v. Pons, 434 U. S. 575 –581 (1978), the manual’s discussion fails to address the particular interplay among the status-based discrimination provision (§2000e–2(a)), the antiretaliation provision (§2000e–3(a)), and the motivating-factor provision (§2000e–2(m)). Other federal antidiscrimination statutes do not have the structure of statutory subsections that control the outcome at issue here. The manual’s failure to address the specific provisions of this statutory scheme, coupled with the generic nature of its discussion of the causation standards for status-based discrimination and retaliation claims, call the manual’s conclusions into serious question. See Kentucky Retirement Systems v. EEOC, 554 U. S. 135 –150 (2008).
The manual’s second argument is unpersuasive, too; for its reasoning is circular. It asserts the lessened causation standard is necessary in order to prevent “proven retaliation” from “go[ing] unpunished.” 2 EEOC Compliance Manual §8–II(E)(1), at 614:0008, n. 45. Yet this assumes the answer to the central question at issue here, which is what causal relationship must be shown in order to prove retaliation.
Respondent’s final argument, in which he is not joined by the United States, is that even if §2000e–2(m) does not control the outcome in this case, the standard applied by Price Waterhouse should control instead. That assertion is incorrect. First, this position is foreclosed by the 1991 Act’s amendments to Title VII. As noted above, Price Waterhouse adopted a complex burden-shifting framework. Congress displaced this framework by enacting §2000e–2(m) (which adopts the motivating-factor standard for status-based discrimination claims) and §2000e–5(g)(2)(B) (which replaces employers’ total defense with a remedial limitation). See Gross, 557 U. S., at 175, n. 2, 177, n. 3, 178, n. 5. Given the careful balance of lessened causation and reduced remedies Congress struck in the 1991 Act, there is no reason to think that the different balance articulated by Price Waterhouse somehow survived that legislation’s passage. Second, even if this argument were still available, it would be inconsistent with the Gross Court’s reading (and the plain textual meaning) of the word “because” as it appears in both §623(a) and §2000e–3(a). See Gross, supra, at 176–177. For these reasons, the rule of Price Waterhouse is not controlling here.V
The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under §2000e–3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer. The University claims that a fair application of this standard, which is more demanding than the motivating-factor standard adopted by the Court of Appeals, entitles it to judgment as a matter of law. It asks the Court to so hold. That question, however, is better suited to resolution by courts closer to the facts of this case. The judgment of the Court of Appeals for the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, PETITIONER v. NAIEL NASSAR
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 24, 2013]
Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.
Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., makes it an “unlawful employment practice” to “discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a) (emphasis added). Backing up that core provision, Title VII also makes it an “unlawful employment practice” to discriminate against any individual “because” the individual has complained of, opposed, or participated in a proceeding about, prohibited discrimination. §2000e–3(a) (emphasis added). This form of discrimination is commonly called “retaliation,” although Title VII itself does not use that term. The Court has recognized that effective protection against retaliation, the office of §2000e–3(a), is essential to securing “a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status.” Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 63 (2006) (Burlington Northern). That is so because “fear of retaliation is the leading reason why people stay silent” about the discrimination they have encountered or observed. Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. 271, 279 (2009) (internal quotation marks and brackets omitted).
Similarly worded, the ban on discrimination and the ban on retaliation against a discrimination complainant have traveled together: Title VII plaintiffs often raise the two provisions in tandem. Today’s decision, however, drives a wedge between the twin safeguards in so-called “mixed-motive” cases. To establish discrimination, all agree, the complaining party need show only that race, color, religion, sex, or national origin was “a motivating factor” in an employer’s adverse action; an employer’s proof that “other factors also motivated the [action]” will not defeat the discrimination claim. §2000e–2(m). But a retaliation claim, the Court insists, must meet a stricter standard: The claim will fail unless the complainant shows “but-for” causation, i.e., that the employer would not have taken the adverse employment action but for a design to retaliate.
In so reining in retaliation claims, the Court misapprehends what our decisions teach: Retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it. Indeed, this Court has explained again and again that “retaliation in response to a complaint about [proscribed] discrimination is discrimination” on the basis of the characteristic Congress sought to immunize against adverse employment action. Jackson v. Birmingham Bd. of Ed., 544 U. S. 167 , n. 3 (2005) (emphasis added; internal quotation marks omitted).
The Court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination “because of,” e.g., race is coupled with a claim of discrimination “because” the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards. Of graver concern, the Court has seized on a provision, §2000e–2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.I
Dr. Naiel Nassar is of Middle Eastern descent. A specialist in the treatment of HIV/AIDS, Nassar was a faculty member of the University of Texas Southwestern Medical Center (UTSW) from 1995 until 2006, save for a period during which he left his employment to continue his education. UTSW is affiliated with Parkland Hospital and, like other faculty members at the University, Nassar also worked as a physician at the Hospital. Beginning in 2001, Nassar served as Associate Medical Director of the Hospital’s Amelia Court Clinic.
Until 2004, Dr. Phillip Keiser, Medical Director of the Clinic, was Nassar’s principal supervisor. In that year, UTSW hired Dr. Beth Levine to oversee the Clinic and to supervise Keiser. Before Levine commenced her employment at UTSW, she interviewed her potential subordinates. Meeting with other Clinic doctors for only 15 to 20 minutes, Levine spent an hour and a half with Nassar, engaging in a detailed review of his resume and reading from a list of prepared questions. Record 2926–2928.
Once Levine came on board, she expressed concern to Keiser about Nassar’s productivity and questioned his work ethic. Id., at 2361–2362. According to Keiser, Levine “never seemed to [be] satisf[ied]” with his assurances that Nassar was in fact working harder than other physicians. Id., at 2362. Disconcerted by Levine’s scrutiny, Nassar several times complained about it to Levine’s supervisor, Dr. Gregory Fitz, Chair of Internal Medicine. App. to Pet. for Cert. 4.
In 2005, Levine opposed hiring another physician who, like Nassar, was of Middle Eastern descent. In Keiser’s presence, Levine remarked that “Middle Easterners are lazy.” Id., at 3. When that physician was hired by Parkland, Levine said, again in Keiser’s presence, that the Hospital had “hired another one.” Ibid. See also Record 2399–2400. Keiser presented to Levine objective data demonstrating Nassar’s high productivity. Levine then began criticizing Nassar’s billing practices. Her criticism did not take into account that Nassar’s salary was funded by a federal grant that precluded billing for most of his services. App. to Pet. for Cert. 3.
Because of Levine’s hostility, Nassar sought a way to continue working at the Clinic without falling under her supervision. To that end, Nassar engaged in discussions with the Hospital about dropping his affiliation with UTSW and retaining his post at Parkland. Although he was initially told that an affiliation agreement between UTSW and Parkland obliged Parkland to fill its staff physician posts with UTSW faculty, talks with the Hospital continued. Eventually, Parkland verbally offered Nassar a position as a staff physician. See App. 67–71, 214–216, 326–330.
In July 2006, Nassar resigned from his position at UTSW. “The primary reason [for his] resignation,” Nassar wrote in a letter to Fitz, “[was] the continuing harassment and discrimination . . . by . . . Dr. Beth Levine.” App. to Pet. for Cert. 5 (internal quotation marks omitted). According to Keiser, Nassar’s letter shocked Fitz, who told Keiser that, because Levine had been “publicly humiliated,” she should be “publicly exonerated.” App. 41. Fitz’s opposition to Parkland’s hiring Nassar prompted the Hospital to withdraw the offer to engage him. App. to Pet. for Cert. 5–6.
After accepting a position at a smaller HIV/AIDS clinic in Fresno, California, Nassar filed a complaint with the Equal Employment Opportunity Commission (EEOC). The agency found “credibl[e] testimonial evidence,” that UTSW had retaliated against Nassar for his allegations of discrimination by Levine. Brief for Respondent 8 (citing Pl. Trial Exh. 78). Nassar then filed suit in District Court alleging that UTSW had discriminated against him, in violation of Title VII, on the basis of his race, religion, and national origin, see §2000e–2(a), and had constructively discharged him. App. to Pet. for Cert. 6; Complaint ¶23. He further alleged that UTSW had retaliated against him for complaining about Levine’s behavior. App. to Pet. for Cert. 6.
On the retaliation claim, the District Court instructed the jury that Nassar “[did] not have to prove that retaliation was [UTSW’s] only motive, but he [had to] prove that [UTSW] acted at least in part to retaliate.” Id., at 47. The jury found UTSW liable for both constructive discharge and retaliation. At the remedial phase, the judge charged the jury not to award damages for “actions which [UTSW] prove[d] by a preponderance of the evidence . . . it would have taken even if it had not considered . . . Nassar’s protected activity.” Id., at 42–43. Finding that UTSW had not met its proof burden, the jury awarded Nassar $438,167.66 in backpay and $3,187,500 in compensatory damages. Id., at 43–44. 1
The Court of Appeals for the Fifth Circuit affirmed in part. 2 Responding to UTSW’s argument that the District Court erred in instructing the jury on a mixed-motive theory of retaliation, the Fifth Circuit held that the instruction conformed to Circuit precedent. 674 F. 3d 448, 454, n. 16 (2012) (citing Smith v. Xerox Corp., 602 F. 3d 320, 330 (2010)). 3II
This Court has long acknowledged the symbiotic relationship between proscriptions on discrimination and proscriptions on retaliation. Antidiscrimination provisions, the Court has reasoned, endeavor to create a workplace where individuals are not treated differently on account of race, ethnicity, religion, or sex. See Burlington Northern, 548 U. S., at 63. Antiretaliation provisions “see[k] to secure that primary objective by preventing an employer from interfering . . . with an employee’s efforts to secure or advance enforcement of [antidiscrimination] guarantees.” Ibid. As the Court has comprehended, “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Id., at 67. “ ‘[E]ffective enforcement,’ ” therefore, can “ ‘only be expected if employees . . . [feel] free to approach officials with their grievances.’ ” Ibid. (quoting Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 292 (1960) ). See also Crawford, 555 U. S., at 279.
Adverting to the close connection between discrimination and retaliation for complaining about discrimination, this Court has held, in a line of decisions unbroken until today, that a ban on discrimination encompasses retaliation. In Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 237 (1969) , the Court determined that 42 U. S. C. §1982, which provides that “[a]ll citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property,” protected a white man who suffered retaliation after complaining of discrimination against his black tenant. Jackson v. Birmingham Board of Education elaborated on that holding in the context of sex discrimination. “Retaliation against a person because [he] has complained of sex discrimination,” the Court found it inescapably evident, “is another form of intentional sex discrimination.” 544 U. S., at 173. As the Court explained:
“Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subject to differential treatment. Moreover, retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.” Id., at 173–174 (citations omitted).
Jackson interpreted Title IX of the Educational Amendments of 1972, 20 U. S. C. §1681(a). Noting that the legislation followed three years after Sullivan, the Court found it “not only appropriate but also realistic to presume that Congress was thoroughly familiar with Sullivan and . . . expected its enactment of Title IX to be interpreted in conformity with it.” 544 U. S., at 176 (internal quotation marks and alterations omitted).
Gómez-Pérez v. Potter, 553 U. S. 474 (2008) , was similarly reasoned. The Court there held that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §633a(a), barring discrimination “based on age,” also proscribes retaliation. 553 U. S., at 479–491. “What Jackson said about the relationship between Sullivan and the enactment of Title IX,” the Court observed, “can be said as well about the relationship between Sullivan and the enactment of the ADEA’s federal-sector provision.” Id., at 485. See also CBOCS West, Inc. v. Humphries, 553 U. S. 442 –457 (2008) (retaliation for race discrimination constitutes discrimination based on race under 42 U. S. C. §1981). There is no sound reason in this case to stray from the decisions in Sullivan, Jackson, Gómez-Pérez, and CBOCS West.III A
The Title VII provision key here, §2000e–2(m), states that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Section 2000e–2(m) was enacted as part of the Civil Rights Act of 1991, which amended Title VII, along with other federal antidiscrimination statutes. See 105Stat. 1071. The amendments were intended to provide “additional protections against unlawful discrimination in employment,” id., §2(3), and to “respon[d] to a number of . . . decisions by [this Court] that sharply cut back on the scope and effectiveness” of antidiscrimination laws, H. R. Rep. No. 102–40, pt. II, pp. 2–4 (1991) (hereinafter House Report Part II) (citing, inter alia, Patterson v. McLean Credit Union, 491 U. S. 164 (1989) ; Martin v. Wilks, 490 U. S. 755 (1989) ; Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989) ).
Among the decisions found inadequately protective was Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) . A plurality of the Court in that case held that the words “because of” in §2000e–2(a) encompass claims challenging an employment decision attributable to “mixed motives,” i.e., one motivated by both legitimate and illegitimate factors. See id., at 240–242. 4 A Title VII plaintiff, the plurality concluded, need show only that a prohibited factor contributed to the employment decision—not that it was the but-for or sole cause. Id., at 240–244. But see id., at 281–282 (Kennedy, J., dissenting). An employer would not be liable, however, if it could show by a preponderance of the evidence that it would have taken the same action absent the illegitimate motive. Id., at 244–245.
Congress endorsed the plurality’s conclusion that, to be actionable under Title VII, discrimination must be a motivating factor in, but need not be the but-for cause of, an adverse employment action. See House Report Part II, at 18. Congress disagreed with the Court, however, insofar as the Price Waterhouse decision allowed an employer to escape liability by showing that the same action would have been taken regardless of improper motive. House Report Part II, at 18. See also H. R. Rep. No. 102–40, pt. I, pp. 45–48 (1991) (hereinafter House Report Part I). “If Title VII’s ban on discrimination in employment is to be meaningful,” the House Report explained, “victims of intentional discrimination must be able to obtain relief, and perpetrators of discrimination must be held liable for their actions.” House Report Part II, at 18.
Superseding Price Waterhouse in part, Congress sought to “restore” the rule of decision followed by several Circuits that any discrimination “actually shown to play a role in a contested employment decision may be the subject of liability.” House Report Part II, at 18. See also House Report Part I, at 48. To that end, Congress enacted §2000e–2(m) and §2000e–5(g)(2)(B). The latter provides that an employer’s proof that an adverse employment action would have been taken in any event does not shield the employer from liability; such proof, however, limits the plaintiff’s remedies to declaratory or injunctive relief, attorney’s fees, and costs.
Critically, the rule Congress intended to “restore” was not limited to substantive discrimination. As the House Report explained, “the Committee endors[ed] . . . the decisional law” in Bibbs v. Block, 778 F. 2d 1318 (CA8 1985) (en banc), which held that a violation of Title VII is established when the trier of fact determines that “an unlawful motive played some part in the employment decision or decisional process.” Id., at 1323; see House Report Part I, at 48. Prior to the 1991 Civil Rights Act, Bibbs had been applied to retaliation claims. See, e.g., Johnson v. Legal Servs. of Arkansas, Inc., 813 F. 2d 893, 900 (CA8 1987) (“Should the court find that retaliation played some invidious part in the [plaintiff’s] termination, a violation of Title VII will be established under Bibbs.”). See also EEOC v. General Lines, Inc., 865 F. 2d 1555, 1560 (CA10 1989).B
There is scant reason to think that, despite Congress’ aim to “restore and strengthen . . . laws that ban discrimination in employment,” House Report Part II, at 2, Congress meant to exclude retaliation claims from the newly enacted “motivating factor” provision. Section 2000e–2(m) provides that an “unlawful employment practice is established” when the plaintiff shows that a protected characteristic was a factor driving “any employment practice.” Title VII, in §2000e–3(a), explicitly denominates retaliation, like status-based discrimination, an “unlawful employment practice.” Because “any employment practice” necessarily encompasses practices prohibited under §2000e–3(a), §2000e–2(m), by its plain terms, covers retaliation.
Notably, when it enacted §2000e–2(m), Congress did not tie the new provision specifically to §§2000e–2(a)–(d), which proscribe discrimination “because of” race, color, religion, gender, or national origin. Rather, Congress added an entirely new provision to codify the causation standard, one encompassing “any employment practice.” §2000e–2(m).
Also telling, §2000e–2(m) is not limited to situations in which the complainant’s race, color, religion, sex, or national origin motivates the employer’s action. In contrast, Title VII’s substantive antidiscrimination provisions refer to the protected characteristics of the complaining party. See §§2000e–2(a)(1)–(2), (c)(2) (referring to “such individual’s” protected characteristics); §§2000e–2(b), (c)(1), (d) (re-ferring to “his race, color, religion, sex, or national origin”). Congress thus knew how to limit Title VII’s coverage to victims of status-based discrimination when it was so minded. It chose, instead, to bring within §2000e– 2(m) “any employment practice.” To cut out retaliation from §2000e–2(m)’s scope, one must be blind to that choice. Cf. Jackson, 544 U. S., at 179, n. 3 (omission of reference to the complaining party’s sex in Title IX supports the conclusion that the statute protects a male plaintiff from retaliation in response to complaints about sex discrimination against women).C
From the inception of §2000e–2(m), the agency entrusted with interpretation of Title VII and superintendence of the Act’s administration, the EEOC, see §2000e–5, has understood the provision to cover retaliation claims. Shortly after Congress amended Title VII to include the motivating-factor provision, the EEOC issued guidance advising that, “[a]lthough [§2000e–2(m)] does not specify retaliation as a basis for finding liability whenever it is a motivating factor for an action, neither does it suggest any basis for deviating from the Commission’s long-standing rule that it will find liability . . . whenever retaliation plays any role in an employment decision.” EEOC, Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, p. 20, n. 14 (July 14, 1992) (hereinafter EEOC Guidance), available at http://www.eeoc.gov/policy/docs/disparat.html (as visited June 21, 2013, and in Clerk of Court’s case file). As the EEOC’s initial guidance explained, “if retaliation were to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination.” Ibid.
In its compliance manual, the EEOC elaborated on its conclusion that “[§2000e–2(m)] applies to retaliation.” 2 EEOC Compliance Manual §8–II(E)(1), p. 614:0008, n. 45 (May 20, 1998) (hereinafter EEOC Compliance Manual). That reading, the agency observed, tracked the view, widely held by courts, “that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation.” Ibid. “[A]n interpretation of [§2000e–2(m)] that permit[ted] proven retaliation to go unpunished,” the EEOC noted, would “undermin[e] the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism.” Ibid.
The position set out in the EEOC’s guidance and compliance manual merits respect. See Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) ; Federal Express Corp. v. Holowecki, 552 U. S. 389, 399 (2008) (“[EEOC’s] policy statements, embodied in its compliance manual and internal directives . . . reflect a body of experience and informed judgment. . . . As such, they are entitled to a measure of respect under the less deferential Skidmore standard.” (internal quotation marks omitted)). If the breadth of §2000e–2(m) can be deemed ambiguous (although I believe its meaning is plain), the provision should be construed to accord with the EEOC’s well-reasoned and longstanding guidance.IV
The Court draws the opposite conclusion, ruling that retaliation falls outside the scope of §2000e–2(m). In so holding, the Court ascribes to Congress the unlikely purpose of separating retaliation claims from discrimination claims, thereby undermining the Legislature’s effort to fortify the protections of Title VII. None of the reasons the Court offers in support of its restrictive interpretation of §2000e–2(m) survives inspection.A
The Court first asserts that reading §2000e–2(m) to encompass claims for retaliation “is inconsistent with the provision’s plain language.” Ante, at 12. The Court acknowledges, however, that “the text of the motivating-factor provision . . . begins by referring to unlawful employment practices,” a term that undeniably includes retaliation. Ibid. (internal quotation marks omitted). Nevermind that, the Court continues, for §2000e–2(m) goes on to reference as “motivating factor[s]” only “race, color, religion, sex, or national origin.” The Court thus sees retaliation as a protected activity entirely discrete from status-based discrimination. Ibid.
This vision of retaliation as a separate concept runs up against precedent. See supra, at 6–7. Until today, the Court has been clear eyed on just what retaliation is: a manifestation of status-based discrimination. As Jackson explained in the context of sex discrimination, “retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.” 544 U. S., at 174.
The Court does not take issue with Jackson’s insight. Instead, it distinguishes Jackson and like cases on the ground that they concerned laws in which “Congress’ treatment of the subject of prohibited discrimination was both broad and brief.” Ante, at 15. Title VII, by contrast, “is a detailed statutory scheme,” that “enumerates specific unlawful employment practices,” “defines key terms,” and “exempts certain types of employers.” Ante, at 16. Accordingly, the Court says, “it would be improper to indulge [the] suggestion that Congress meant to incorporate [in Title VII] the default rules that apply only when Congress writes a broad and undifferentiated statute.” Ibid.
It is strange logic indeed to conclude that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation. It is hardly surprising, then, that our jurisprudence does not support the Court’s conclusion. In Gómez-Pérez, the Court construed the federal-sector provision of the ADEA, which proscribes “discrimination based on age,” 29 U. S. C. §633a(a), to bar retaliation. The Court did so mindful that another part of the Act, the provision applicable to private-sector employees, explicitly proscribes retaliation and, moreover, “set[s] out a specific list of forbidden employer practices.” Gómez-Pérez, 553 U. S., at 486–487 (citing 29 U. S. C. §§623(a) and (d)).
The Court suggests that “the la[w] at issue in . . . Gómez-Pérez [was a] broad, general ba[r] on discrimination.” Ante, at 15. But, as our opinion in that case observes, some of the ADEA’s provisions are brief, broad, and general, while others are extensive, specific, and detailed. 553 U. S., at 487. So too of Title VII. See ibid. (“The ADEA federal-sector provision was patterned directly after Title VII’s federal-sector discrimination ban . . . [which] contains a broad prohibition of ‘discrimination,’ rather than a list of specific prohibited practices.” (some internal quotation marks omitted)). It makes little sense to apply a different mode of analysis to Title VII’s §2000e–2(m) and the ADEA’s §633a(a), both brief statements on discrimination in the context of larger statutory schemes. 5
The Court’s reliance on §109(b) of the Civil Rights Act of 1991, 105Stat. 1077, 6 and the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, is similarly unavailing. According to the Court, Congress’ explicit reference to §2000e–3(a) in §109(b) “reinforc[es] the conclusion that Congress acted deliberately when it omitted retaliation claims from §2000e–2(m).” Ante, at 13. The same is true of the ADA, the Court says, as “Congress provided not just a general prohibition on discrimination ‘because of [an individual’s] disability,’ but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination . . . [a]nd . . . an express antiretaliation provision.” Ante, at 17.
This argument is underwhelming. Yes, Congress has sometimes addressed retaliation explicitly in antidiscrimination statutes. When it does so, there is no occasion for interpretation. But when Congress simply targets discrimination “because of” protected characteristics, or, as in §2000e–2(m), refers to employment practices motivated by race, color, religion, sex, or national origin, how should courts comprehend those phrases? They should read them informed by this Court’s consistent holdings that such phrases draw in retaliation, for, in truth, retaliation is a “form of intentional [status-based] discrimination.” See Jackson, 544 U. S., at 173, described supra, at 6–7. That is why the Court can point to no prior instance in which an antidiscrimination law was found not to cover retaliation. The Court’s volte-face is particularly imprudent in the context of §2000e–2(m), a provision added as part of Congress’ effort to toughen protections against workplace discrimination.B
The Court also disassociates retaliation from status-based discrimination by stressing that the bar on the latter appears in §2000e–2, while the proscription of retaliation appears in a separate provision, §2000e–3. Section 2000e–2, the Court asserts, “contains Title VII’s ban on status-based discrimination . . . and says nothing about retaliation.” Ante, at 13. Retaliation, the Court therefore concludes, should not be read into §2000e–2(m). Ante, at 13–14.
The Court’s reasoning rests on a false premise. Section 2000e–2 does not deal exclusively with discrimination based on protected characteristics. The provisions stated after §§2000e–2(a)–(d) deal with a variety of matters, some of them unquestionably covering retaliation. For example, §2000e–2(n), enacted in tandem with and located immediately after §2000e–2(m), limits opportunities to collaterally attack employment practices installed to implement a consent judgment. Section 2000e–2(n) applies beyond the substantive antidiscrimination provisions in §2000e–2; indeed, it applies beyond Title VII to encompass claims “under the Constitution or [other] Federal civil rights laws.” §2000e–2(n)(1)(A). Thus, if an employee sues for retaliatory discharge in violation of §2000e–3(a), and a consent judgment orders reinstatement, any person adversely affected by that judgment (e.g., an employee who loses seniority as a result) would generally be barred from attacking the judgment if she was given actual notice of the proposed order and a reasonable opportunity to present objections. That Congress placed the consent-judgment provision in §2000e–2 and not in §2000e–3 is of no moment. As the text of the provision plainly conveys, §2000e–2(n) would reach consent judgments settling complaints about retaliation, just as it would cover consent judgments settling complaints about status-based discrimination.
Section 2000e–2(g) is similarly illustrative. Under that provision, “it shall not be an unlawful employment practice for an employer . . . to discharge [an] individual” if she fails to fulfill any requirement imposed in the interest of national security. Because §2000e–3(a) renders retaliation an “unlawful employment practice,” §2000e–2(g)’s exemption would no doubt apply to a Title VII retaliatory discharge claim. Given these provisions, Congress’ placement of the motivating-factor provision within §2000e–2 cannot bear the weight the Court places on it. 7C
The Court gives no deference to the EEOC’s longstanding position that §2000e–2(m) applies to retaliation because, the Court charges, the agency did not “address the particular interplay among the status-based antidiscrimination provision (§2000e–2(a)), the antiretaliation provision (§2000e–3(a)), and the motivating-factor provision (§2000e–2(m)).” Ante, at 21. Not so.
In its compliance manual, the EEOC noted that some courts had concluded that §2000e–2(m) does not cover retaliation, citing as an example Woodson v. Scott Paper Co., 109 F. 3d 913 (CA3 1997). In that decision, the Third Circuit acknowledged it was “given pause by the fact that . . . courts have generally borrowed from discrimination law in determining the burdens and order of proof in retaliation cases.” Id., at 934. One could therefore say, the Third Circuit continued, that “Congress knew of the practice of borrowing in retaliation cases, and presumed that courts would continue this practice after the 1991 Act.” Ibid.
While Woodson rejected that argument, the EEOC found it sound. See EEOC Compliance Manual, at 614:0008, n. 45 (“Courts have long held that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation.”). See also EEOC Guidance, at 20, n. 14 (while §2000e–2(m) does not explicitly refer to retaliation, nothing in the provision calls for deviation from the longstanding practice of finding liability when a plaintiff demonstrates that retaliatory intent motivated an adverse employment decision). By adverting to Woodson, the EEOC made clear that it considered the very argument the Court relies on today. Putting down the agency’s appraisal as “generic,” ante, at 22, is thus conspicuously unfair comment.
The Court’s second reason for refusing to accord deference to the EEOC fares no better. The EEOC’s conclusion that “the lessened causation standard is necessary in order to prevent ‘proven retaliation’ from ‘go[ing] unpunished,’ ” the Court reasons, “is circular” because it “assumes the answer to the central question at issue here, which is what causal relationship must be shown in order to prove retaliation.” Ibid. That reasoning will not wash. Under the motivating-factor test set out in §2000e–2(m), a plaintiff prevails if she shows that proscribed conduct “was a motivating factor” for the adverse employment action she encountered, “even though other factors also motivated the [action].” She will succeed, although the relief to which she is entitled may be restricted. See supra, at 9. Under the Court’s view, proof that retaliation was a factor motivating an adverse employment action is insufficient to establish liability under §2000e–3(a). The Court’s but-for causation standard does not mean that the plaintiff has failed to prove she was subjected to unlawful retaliation. It does mean, however, that proof of a retaliatory motive alone yields no victory for the plaintiff. Put otherwise, the Court’s view “permits proven retaliation to go unpunished,” just as the EEOC recognized. See EEOC Compliance Manual, at 614:0008, n. 45.V A
Having narrowed §2000e–2(m) to exclude retaliation claims, the Court turns to Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009) , to answer the question presented: Whether a plaintiff must demonstrate but-for causation to establish liability under §2000e–3(a).
The Court held in Gross that, in contrast to Title VII, §623(a) of the ADEA does not authorize any age discrimination claim asserting mixed motives. Explaining that uniform interpretation of the two statutes is sometimes unwarranted, the Court noted in Gross that the phrase “because of . . . age” in §623(a) has not been read “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.” 557 U. S., at 175, n. 2. Yet Gross, which took pains to distinguish ADEA claims from Title VII claims, is invoked by the Court today as pathmarking. See ante, at 2 (“The holding and analysis of [Gross] are instructive here.”).
The word “because” in Title VII’s retaliation provision, §2000e–3(a), the Court tells us, should be interpreted not to accord with the interpretation of that same word in the companion status-based discrimination provision of Title VII, §2000e–2(a). Instead, statutory lines should be crossed: The meaning of “because” in Title VII’s retaliation provision should be read to mean just what the Court held “because” means for ADEA-liability purposes. But see Gross, 557 U. S., at 174 (“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.’ ”(quoting Holowecki, 552 U. S., at 393)). In other words, the employer prevailed in Gross because, according to the Court, the ADEA’s antidiscrimination prescription is not like Title VII’s. But the employer prevails again in Nassar’s case, for there is no “meaningful textual difference,” ante, at 11, between the ADEA’s use of “because” and the use of the same word in Title VII’s retaliation provision. What sense can one make of this other than “heads the employer wins, tails the employee loses”?
It is a standard principle of statutory interpretation that identical phrases appearing in the same statute—here, Title VII—ordinarily bear a consistent meaning. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) . Following that principle, Title VII’s retaliation provision, like its status-based discrimination provision, would permit mixed-motive claims, and the same causation standard would apply to both provisions.B
The Court’s decision to construe §2000e–3(a) to require but-for causation in line with Gross is even more confounding in light of Price Waterhouse. Recall that Price Waterhouse interpreted “because of” in §2000e–2(a) to permit mixed-motive claims. See supra, at 8. The Court today rejects the proposition that, if §2000e–2(m) does not cover retaliation, such claims are governed by Price Waterhouse’s burden-shifting framework, i.e., if the plaintiff shows that discrimination was a motivating factor in an adverse employment action, the defendant may escape liability only by showing it would have taken the same action had there been no illegitimate motive. It is wrong to revert to Price Waterhouse, the Court says, because the 1991 Civil Rights Act’s amendments to Title VII abrogated that decision.
This conclusion defies logic. Before the 1991 amendments, several courts had applied Price Waterhouse’s burden-shifting framework to retaliation claims. 8 In the Court’s view, Congress designed §2000e–2(m)’s motivating-factor standard not only to exclude retaliation claims, but also to override, sub silentio, Circuit precedent applying the Price Waterhouse framework to such claims. And with what did the 1991 Congress replace the Price Waterhouse burden-shifting framework? With a but-for causation requirement Gross applied to the ADEA 17 years after the 1991 amendments to Title VII. Shut from the Court’s sight is a legislative record replete with statements evincing Congress’ intent to strengthen antidiscrimination laws and thereby hold employers accountable for prohibited discrimination. See Civil Rights Act of 1991, §2, 105Stat. 1071; House Report Part II, at 18. It is an odd mode of statutory interpretation that divines Congress’ aim in 1991 by looking to a decision of this Court, Gross, made under a different statute in 2008, while ignoring the overarching purpose of the Congress that enacted the 1991 Civil Rights Act, see supra, at 8–10.C
The Court shows little regard for trial judges who must instruct juries in Title VII cases in which plaintiffs allege both status-based discrimination and retaliation. Nor is the Court concerned about the capacity of jurors to follow instructions conforming to today’s decision. Causation is a complicated concept to convey to juries in the best of circumstances. Asking jurors to determine liability based on different standards in a single case is virtually certain to sow confusion. That would be tolerable if the governing statute required double standards, but here, for the reasons already stated, it does not.VI A
The Court’s assertion that the but-for cause requirement it adopts necessarily follows from §2000e–3(a)’s use of the word “because” fails to convince. Contrary to the Court’s suggestion, see ante, at 5–6, the word “because” does not inevitably demand but-for causation to the exclusion of all other causation formulations. When more than one factor contributes to a plaintiff’s injury, but-for causation is problematic. See, e.g., 1 Restatement (Third) of Torts §27, Comment a, p. 385 (2005) (noting near universal agreement that the but-for standard is inappropriate when multiple sufficient causes exist) (hereinafter Restatement Third); Restatement of Torts §9, Comment b, p. 18 (1934) (legal cause is a cause that is a “substantial factor in bringing about the harm”).
When an event is “overdetermined,” i.e., when two forces create an injury each alone would be sufficient to cause, modern tort law permits the plaintiff to prevail upon showing that either sufficient condition created the harm. Restatement Third §27, at 376–377. In contrast, under the Court’s approach (which it erroneously calls “textbook tort law,” ante, at 6), a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors. Ante, at 18–19.
Today’s opinion rehashes arguments rightly rejected in Price Waterhouse. Concurring in the judgment in that case, Justice O’Connor recognized the disconnect between the standard the dissent advocated, which would have imposed on the plaintiff the burden of showing but-for causation, see 490 U. S., at 282, 286–287 (Kennedy, J., dissenting), and the common-law doctrines on which the dissent relied. As Justice O’Connor explained:
“[I]n the area of tort liability, from whence the dissent’s ‘but-for’ standard of causation is derived, . . . the law has long recognized that in certain ‘civil cases’ leaving the burden of persuasion on the plaintiff to prove ‘but-for’ causation would be both unfair and destructive of the deterrent purposes embodied in the concept of duty of care. Thus, in multiple causation cases, where a breach of duty has been established, the common law of torts has long shifted the burden of proof to . . . defendants to prove that their negligent actions were not the ‘but-for’ cause of the plaintiff’s injury.” Id., at 263–264 (concurring in judgment) (citing Summers v. Tice, 33 Cal. 2d 80, 84–87, 199 P. 2d 1, 3–4 (1948)).
Justice Brennan’s plurality opinion was even less solicitous of the dissent’s approach. Noting that, under the standard embraced by the dissent in Price Waterhouse, neither of two sufficient forces would constitute cause even if either one alone would have led to the injury, the plurality remarked: “We need not leave our common sense at the doorstep when we interpret a statute.” 490 U. S., at 241.B
As the plurality and concurring opinions in Price Waterhouse indicate, a strict but-for test is particularly ill suited to employment discrimination cases. Even if the test is appropriate in some tort contexts, “it is an entirely different matter to determine a ‘but-for’ relation when . . . consider[ing], not physical forces, but the mind-related characteristics that constitute motive.” Gross, 557 U. S., at 190 (Breyer, J., dissenting). When assessing an employer’s multiple motives, “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.” Id., at 191. See also Price Waterhouse, 490 U. S., at 264 (opinion of O’Connor, J.) (“ ‘[A]t . . . times the [but-for] test demands the impossible. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs.’ ” (quoting Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev. 60, 67 (1956))).
This point, lost on the Court, was not lost on Congress. When Title VII was enacted, Congress considered and rejected an amendment that would have placed the word “solely” before “because of [the complainant’s] race, color, religion, sex, or national origin.” See 110 Cong. Rec. 2728, 13837–13838 (1964). Senator Case, a prime sponsor of Title VII, commented that a “sole cause” standard would render the Act “totally nugatory.” Id., at 13837. Life does not shape up that way, the Senator suggested, commenting “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.” Ibid.* * *
The Court holds, at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination, that §2000e–2(m) excludes retaliation claims. It then reaches outside of Title VII to arrive at an interpretation of “because” that lacks sensitivity to the realities of life at work. In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. See ante, at 18–19. Congress had no such goal in mind when it added §2000e–2(m) to Title VII. See House Report Part II, at 2. Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., post, p. 1, should prompt yet another Civil Rights Restoration Act.
For the reasons stated, I would affirm the judgment of the Fifth Circuit.
1 The District Court reduced compensatory damages to $300,000, the statutory cap under Title VII. See 42 U. S. C. §1981a(b)(3)(D).
2 The Court of Appeals found the evidence insufficient to supportthe claim of constructive discharge and reversed the District Court’s judgment to that extent. See App. to Pet. for Cert. 8–10. That ruling is not contested here.
3 The Fifth Circuit has since reversed course in an unpublished opinion, concluding that §2000e–2(m)’s motivating-factor prescription does not apply to retaliation claims. See Carter v. Luminant Power Servs. Co., No. 12–10642, 2013 WL 1337365 (Apr. 3, 2013).
4 Justices White and O’Connor separately concurred and would have required the Title VII plaintiff to show that protected characteristics constituted a substantial motivating factor in the adverse employment decision. See Price Waterhouse v. Hopkins, 490 U. S. 228, 259 (1989) (White, J., concurring in judgment); id., at 265 (O’Connor, J., concurring in judgment).
5 The Court obscures the inconsistency between today’s opinion and Gómez-Pérez by comparing §633a to all of Title VII. See ante, at 16 (“Unlike Title IX, §1981, §1982, and the federal-sector provisions of the ADEA, Title VII is a detailed statutory scheme.”). That comparison is inapt. Like Title VII, the ADEA is a “detailed statutory scheme.” Ibid. Compare ibid. (citing Title VII provisions that proscribe status-based discrimination by employers, employment agencies, labor organizations, and training programs; bar retaliation; prohibit advertising a preference for certain protected characteristics; define terms; exempt certain employers; and create an agency with rulemaking and enforcement authority), with 29 U. S. C. §§623(a)–(e) (proscribing age discrimination by employers, employment agencies, and labor unions; barring retaliation; prohibiting advertising a preference for employees of a particular age), §628 (granting rulemaking authority to the EEOC), and §630 (defining terms). Thus, §633a is just like §2000e–2(m) in the relevant respect: both are single provisions comprised within a detailed scheme.
6 Now codified at 42 U. S. C. §2000e–1(b), §109(b) provides: “It shall not be unlawful under §2000e–2 or 2000e–3 . . . for an employer . . . to take any action otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer . . . to violate the law of the foreign country in which such workplace is located.” The provision was framed to accord with this Court’s decision in EEOC v. Arabian American Oil Co., 499 U. S. 244 (1991) .
7 The Court’s assertion that we “confronted a similar structural dispute in Lehman v. Nakshian, 453 U. S. 156 (1981) ,” ante, at 17, assumes its own conclusion. As the Court explains, in Nakshian, the plaintiff argued that §633a of the ADEA afforded the right to trial by jury. 453 U. S., at 157. An amendment to the private-sector provision, codified at 29 U. S. C. §626(c), granted that right to plaintiffs suing private employers, as well as state and local governmental entities. But no one argued in Nakshian that the private-sector amendment applied to the federal-sector provision. Hence, Nakshian’s holding that the ADEA does not permit a federal-sector plaintiff to try her case before a jury is relevant only if the Court is correct that §2000e–2(m) does not cover retaliation claims.
8 See Vislisel v. Turnage, 930 F. 2d 9, 9–10 (CA8 1991); Carter v. South Central Bell, 912 F. 2d 832, 843 (CA5 1990); Williams v. Mallinckrodt, 892 F. 2d 75 (CA4 1989) (table).
ORAL ARGUMENT OF DARYL L. JOSEFFER ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: Our last case of the year is 12-484, University of Texas Southwestern Medical Center v. Nassar.
Daryl L Joseffer: Good morning, and may it please the Court:
This Court's decision in Gross does most of the work in this case and the plain language of the 1991 amendments to Title VII do the rest.
Under Gross, Nassar must prove that retaliation was the but-for cause of the challenged employment action unless Congress has specifically relieved him of that burden by authorizing a mixed motive claim.
In -- in the 1991 amendments, however, Congress authorized mixed motive treatment only for Title VII claims that challenge -- that challenge discrimination based on membership in a protected class, not for retaliation claims.
And for that reason, a Title VII retaliation claim must prove but-for causation.
Justice Ruth Bader Ginsburg: In the -- in the AIDS discrimination context, there wouldn't be a difference between the discrimination claim itself and the retaliation.
They'd both be governed by the same standard, isn't that right, in the age discrimination area, the but-for causation?
Or am I wrong about that?
Daryl L Joseffer: Yeah.
Well, the Age Act does not permit any mixed motive claims.
Justice Ruth Bader Ginsburg: Yes.
Daryl L Joseffer: So for this purpose in the Age Act, everything is but-for, that's correct.
Justice Ruth Bader Ginsburg: But your argument is that in Title VII, where it's very clear what the standard Congress wants to have for the discrimination claim, you're going to have a different standard for retaliation.
So, in these statutes, I thought these two traveled together, whatever the standard is for discrimination is the same for retaliation.
Daryl L Joseffer: Well, that -- I mean, to some extent within Title VII, that is the question in the case, but what we have here is an amendment within Title VII, it is first in Title VII where it's set forth discrimination based on class and discrimination based on retaliation as separate types of discrimination, and this provision treats them differently.
It specifically limits--
Justice Elena Kagan: Well, I guess the question, Mr. Joseffer, is, is there any other discrimination statute in which one can say that there's a different standard for proving retaliation than there is for proving substantive discrimination?
Because as I sort of survey the universe, it seems as though whatever the standard is, the standard is the same for both, and there's no statute in which the two have been divorced.
Am I wrong about that?
Daryl L Joseffer: --Well, I mean -- the reason I ask the question -- I would agree in the sense that if what we're talking about is but-for versus mixed motive, right?
It's -- it's but-for everywhere except for within the meaning of this one amendment.
Congress clearly intended to make an exception here to the normal but-for, so the question is to the scope of it.
Justice Elena Kagan: I'll try again.
Is there any other statute in which we have a different standard of causation for a retaliation claim than we do for a substantive discrimination claim?
Daryl L Joseffer: No, because it's but-for everywhere except for this one amendment.
Justice Elena Kagan: Well, is there -- I mean, it's but-for everywhere.
Is there even any time at which whatever the standard that applied, you know, pre-Gross, is there ever a moment and is there ever a statute in the history of antidiscrimination laws where there has been a divorce, a different standard for retaliation than for substantive discrimination?
Daryl L Joseffer: Not -- I can't point to anything specific because what we had, right, was -- there was -- I can't point to anything specific on that.
Up until the statute, the whole point of Gross, right, is that the statute carves out a narrow exception from but-for and--
Justice Elena Kagan: All I'm saying, you know, Gross was a couple of years ago.
It said but-for covers the -- the ABA and outside Title VII.
You know, we've had a lot of discrimination statutes since 1964.
We've had a lot of different standards applying to those discrimination statutes since 1964.
And you're coming in here and asking for the first time in all of those many decades that we should divorce the retaliation claim from the substantive discrimination claim and make them follow two different standards; is that correct?
Daryl L Joseffer: --Well, I mean, yes and no, in the sense that if we're talking about but-for versus mixed, right, yes, that's a creature of this specific statute we're talking about.
If we're talking about other aspects of retaliation and other types of discrimination, there are differences in the statutes.
Justice Samuel Alito: Did this court ever hold that a Price Waterhouse framework applied to retaliation claims?
Daryl L Joseffer: No.
And the -- I mean, the backdrop here, which is the whole point of Gross, right, is that as of Price Waterhouse, we had, you know, a somewhat confusing and murky alignment of opinions, that -- and I think everyone agrees with this -- interpreted only at Section 2a, the discrimination based on class provision.
Then, two years later, Congress came in with this amendment to specifically identify what it wanted to do about mixed motive.
And Gross says that except for when Congress has specifically called for this mixed motive treatment, it's but-for is the holding of Gross.
And when we look to this provision -- I mean, there are different ways of looking at it, but one would be to say that I'm not aware of any statute that has a specific retaliation provision where this Court has construed discrimination based on class generally to encompass retaliation, because that would make the retaliation provision here in 3a absolutely surplusage.
It would make the other statutory cross-references to 3a surplusage, because you'd be taking the specific retaliation provision within Title VII and subsuming it within a general treatment of discrimination based on -- on class, race, and so forth.
And this basic structure of these provisions of Title VII is that when Congress wants to refer to all Title VII discrimination claims, it will refer as it did in subsection 2n to a claim of employment discrimination, generally; it will refer as it did also in section 2 to an unlawful employment practice, which would cover the waterfront, but when it wants to cover a specific subset, it refers to retaliation as spelled out in 3(a), or to discrimination based on membership in one of the five protected classes.
Justice Sonia Sotomayor: I'm sorry, I somehow lost what you were saying.
Isn't the law, and our presumption in Jackson, that when we talk about discrimination on the basis of race that it includes retaliation generally?
Daryl L Joseffer: --Well, the reason -- well, what Jackson says of course and Title VII is vastly different.
Justice Sonia Sotomayor: Well, different because it was the beginning of this sort of endeavor of creating a statute.
Daryl L Joseffer: --Well, the distinction that Jackson draws and also that Gomez-Perez draws expressly in distinguishing this type of situation is if -- if you have a broad general prohibition on discrimination or discrimination based on race, without more -- without more specificity, the Court will presume that that would include retaliation.
But when you have a statute, like this one, that specifically singles that -- specifically describes in detail the different types of prohibited discrimination, including specifically retaliation, this Court has never overridden that specific statutory text to put one of those specifically broken-out types of discrimination into another more general one, such as discrimination based on race, which is why--
Justice Sonia Sotomayor: I'm -- I'm not sure what difference it makes.
Daryl L Joseffer: --Well, because otherwise, you are taking the--
Justice Sonia Sotomayor: Other than in the outcome you want here.
Daryl L Joseffer: --As a matter -- well, as a matter of statutory interpretation, right, which then drives the outcome, the difference is that if -- if you treat a specific retaliation reference or provision as being subsumed within a more general one, a discrimination based on race, for example, you are treating the specific retaliation reference to be surplusage, to have no effect and to not need to be there, and you're treating the other statutory cross-references to it as also being surplusages, which is why, when Congress does speaks more directly this Court's never overridden, never said that it will take a specific retaliation provision and treat it like it's not there and toss it and -- based on race, for example.
And that's why -- I mean, that's why those general cases they cite, those are our cases, because Jackson specifically says that Title VII is vastly different for this very reason.
Justice Elena Kagan: Well, Mr. Joseffer, I mean, Title VII is written before any of these cases come along.
So Title VII is written and it says we have an anti -- you know, a substantive antidiscrimination provision, and we have a retaliation provision.
And then the Court starts issuing cases.
And it says, by the way, you actually don't need both.
One will do the job for you, because one includes the other.
And that's in Sullivan.
And that's in Jackson.
And that's in Gomez-Perez, and I'm sure I am missing a few.
Three, four, five times, the Court says this.
So then in 1991 Congress comes back and it says, we want to make some amendments, what do we have to do?
Do we have to amend both, the anti -- the substantive provision and the retaliation provision?
Well, no, we have been told five times that as long as we say one it means both.
And so that's what Congress does in 1991.
Daryl L Joseffer: There are a couple -- if you just look at 1991, there are a few reasons that we know from the '91 that doesn't work.
One is at almost at the same time in 1991 Congress enacted the Americans With Disabilities Act, where it again separately broke out discrimination based on disability and retaliation, treated them separately.
So Congress hadn't forgotten that it was treating them differently.
Also, in this very provision, the Civil Rights Act of 1991, Congress specifically cross-referenced both the part of Title VII that contains the general provision and the part of VII, Section 3, that contains retaliation.
So it's specifically dealing with these separate provisions, acknowledging that it has in fact presumptively at least has read them and understands the distinction.
I mean, I think we presume it anyhow, but we know it from the actual statutory text of the '91 -- 1991 Act.
Justice Ruth Bader Ginsburg: Well, it seems that the overall purpose of the '91 Act was to overrule decisions of this Court that Congress thought had not interpreted Title VII properly.
And am I right that what they put about motivating factor, a motivating factor, that is more plaintiff-friendly than the -- than the standard that the Court declared in -- in Price Waterhouse?
Daryl L Joseffer: --For -- for those cases that -- that the motivating factor provision governs, it's more plaintiff-friendly, yes.
Justice Ruth Bader Ginsburg: So it's -- it's really odd to think that in wanting to go beyond what we did in Price Waterhouse, the Court meant to set up an entirely different standard for -- for retaliation.
Daryl L Joseffer: That was basically the same argument that this Court rejected in Gross, in -- in that Gross involved an absolutely identical statutory provision, that was lifted in fact, deliberately lifted verbatim, from Title VII to be put into the Age Act.
And what this Court held, basically, it was that, look: Whatever Congress's overall purpose or general purpose behind the 1991 act as a whole, right, what we have to do is look at what it actually did, what lines it actually drew in any given situation.
Justice Ruth Bader Ginsburg: Let's look at what they actually did.
If we look at this (m) section, it says,
"except as otherwise provided in this subchapter. "
I take it that would include retaliation as well, in the subchapter.
Daryl L Joseffer: --Yes.
Justice Ruth Bader Ginsburg: "-- an unlawful employment practice is established. "
And then when we go over to the retaliation provision, it says,
"it shall be an unlawful employment practice. "
So why doesn't that suggest that the -- “ an employment practice ” under the retaliation provision is the same as “ an employment practice ” under this--
Daryl L Joseffer: Well, the -- under Title VII, there are basically three different ways to establish an unlawful employment practice.
One is the general provision for discrimination because of membership in a class.
One is because of retaliation.
And this is another one.
So this defines basically a third way of establishing whether an employment practice is unlawful.
And what it says is that any employment practice that is motivated by one of the five listed factors is an unlawful employment practice.
So this is why it all keeps coming back to do those five factors, those five motivations, do they or do they not include retaliation?
We agree with the Government that that's what it all comes down to.
And as to that question, I mean, there was discussion earlier today about the weight of authority.
I mean, nine courts of appeals have squarely addressed this.
They've all agreed with us because Title VII's text and structure are so clear, that Title VII -- and that was the basis for the distinction of Title VII in Gomez-Perez.
Gomez-Perez distinguished the identical provisions of the Age Act, made the same point.
Jackson again was vastly different for this reason--
Justice Antonin Scalia: I can't understand you very well.
Could you -- maybe you have to lift up your mike, or maybe you have to speak more slowly.
But I'm having an awful time following you.
Daryl L Joseffer: --I apologize, Your Honor.
I was just saying the basic point is that, as Jackson and Gomez-Perez indicated, the specific controls the general.
And when Congress breaks out retaliation, that's a different subset of discrimination that's not been subsumed within discrimination based on class.
Otherwise, you are reading out the retaliation provisions and making them surplusage, which is why all of the many courts of appeals that looked at this unanimously agreed with us.
Justice Ruth Bader Ginsburg: --The EEOC didn't.
Daryl L Joseffer: Right.
Well, this Court has already disagreed with the EEOC.
The EEOC has two footnotes and informal guidance that say that under the 1991 amendments retaliation claims can be proven under a mixed motive theory for any of the statutes that the EEOC administers, which is clearly contrary to Gross.
And that informal guidance does not contain -- what it contains basically is, you know, policy analysis of why they would like that to be the result, but no textual analysis whatsoever.
There's -- so the guidance in one doesn't get deference because it's contrary to the plain text of the statute, as numerous courts of appeals have recognized.
And two, in terms of its power to persuade, I mean, this Court has already rejected it and even as applied to Title VII retaliation, you know, courts of appeals have unanimously rejected it as well because there is just policy there, there's no textual analysis.
Justice Samuel Alito: As of 1991 -- well, Gomez-Perez and Jackson came after 1991, right?
Daryl L Joseffer: Yes, the other's before.
Justice Samuel Alito: So as of 1991, was there any case, any decision of this Court other than Sullivan, that could have possibly led Congress to a conclusion that the general prohibition against discrimination included a prohibition of retaliation?
Daryl L Joseffer: I think you are right about the timing.
And Sullivan was so general that -- I don't know that the law was a whole lot different in 1991 than it had been in '64 on this.
Justice Elena Kagan: Well, but, Mr. Joseffer, in CBOCS, we said that because of Sullivan alone, just because of Sullivan, there was no need for Congress to exclude explicit language about retaliation.
In other words, we -- we said Sullivan made the point clear.
Now, Justice Alito was right.
After that, it goes on.
We have done it many more times after 1991.
But we have said that Sullivan itself made the point clear that you did not need explicit language about retaliation.
Daryl L Joseffer: Right.
But the -- and the main point is the one I was making earlier, that in 1991 itself, Congress was continuing to distinguish between retaliation and discrimination based on class, and in provisions of this Act and also in the almost simultaneously enacted Americans With Disabilities Act.
But there has been another provision in the Disabilities Act that treats retaliation and discrimination based on -- on disability is significantly different in terms of the remedies that are available for the two.
So even at the same time, Congress has elsewhere also been distinguishing between the two.
Justice Elena Kagan: I mean, here's what you're ask -- this goes back to Justice Ginsburg's question -- but here's what you're asking us to accept, Mr. Joseffer.
Congress comes along in 1991 in a world in which there has -- there have never been separate standards for retaliation and substantive discrimination.
Congress is trying to codify and make even stronger the Price Waterhouse decision, right?
They -- you know, they say, basically, we like Price Waterhouse, but it's kind of confused and the court was kind of fractured.
We're going to really put it into place legislatively.
They do that, they follow the -- essentially the drafting manuals that we have given them in Sullivan.
And you're saying, well, no.
What they really meant was that retaliation would have a different standard and, indeed, retaliation would have a standard that the dissenting justices suggested in Price Waterhouse, notwithstanding what Congress was clearly intending to do was codify the majority -- the plurality-plus position.
Daryl L Joseffer: Well, what -- Gross rejected a fair amount of that reasoning, right?
I mean, the point is that Price Waterhouse -- you could say that in Price Waterhouse, there is no reason to think that there should be mixed-motive claims, right?
Now, Congress shortly thereafter came in with the '91 amendments to say, okay.
We'll have mixed motive claims in this one category.
Gross says that's a relatively narrow category.
We're going to assume Congress does not want them anywhere else, even though, you know, discrimination under the Age Act or under Title VII, you could ask why should it be different.
Well, because Congress decided it would be.
Justice Elena Kagan: Well, Gross is talking about outside of Title VII.
And -- and whatever might be said of Gross outside of Title VII, here, where Congress is specifically trying to make Title VII conform with Price Waterhouse, with the backdrop of our legislative drafting instructions, and with the backdrop of never distinguishing between retaliation and antidiscrimination, you know, how do you get to where you want to be?
This would be, like -- talk about elephants in mouse holes or talk about -- you know, we can take up all our cliches, the dog that didn't bark.
You know, Congress doesn't do things like this without saying something.
Daryl L Joseffer: --Well, first off, it did.
Because in this statute, as in others, it distinguishes between discrimination based on membership in a class and retaliation, but it wants to cover all of it, it uses a more general phrase.
When it wants to cover one of them, it says one.
Here it said one.
But beyond that, again, in terms of the backdrop though -- I mean, the -- the whole point of Gross is that you -- you stick to the plain language of '91, and that's -- that's where mixed motive treatment is permitted, and also where there's a -- there's a negative inference elsewhere that is so strong that as you said, it applies even in other statutes.
Well, if that negative inference applies in other statutes, it would sure apply within the same statute that -- that this provision exists in and is amending.
Also, there are significant differences between discrimination based on class and retaliation that Congress could -- didn't have to -- but could certainly reasonably choose to follow.
One is that retaliation is -- well, excuse me.
The primary evil Congress was after here, right, was discrimination based on race, sex, religion, and so forth.
Retaliation is an important derivative prophylactic provision to help enforce the primary right, but Congress could reasonably conclude that the significant cons with mixed motive treatment did not justify extending it to the secondary right.
Justice Sonia Sotomayor: Where do you see that anywhere in the legislative history?
Daryl L Joseffer: --The only thing you'll find in the legislative history, the only thing you'll find that's specific to this, is that Congress was aware of retaliation, including aware of Title VII's retaliation provision, and it amended legislation to incorporate that provision when it wanted to.
You're not going to find anything else in there.
Justice Sonia Sotomayor: Well, but it -- it calls it the same thing it calls the substantive discrimination charge, an un -- it's a -- an unfair employment practice.
I mean, I don't understand how you -- where you get to your policy point--
Daryl L Joseffer: Well, the--
Justice Sonia Sotomayor: --from the fact that it calls it the same thing on both substantive.
Daryl L Joseffer: --No, my -- my point is this.
This Court explained, for example, in Burlington Northern, the two -- the two are both prohibited types of discrimination, generally, under but-for standard, but they are different, which is why we have different labels and different names for the two categories.
And -- and Congress could reasonably choose to give greater protection to the primary right and not the secondary one considering the negative.
Justice Sonia Sotomayor: Calls it both identical things, an unlawful employment practice.
Daryl L Joseffer: Yes.
And textually, but it then describes seven different unlawful employment practices.
Discrimination based on the five classes and discrimination based on the two types of protected conduct.
This provision then applies to the five practices and leaves out the two types of protected conduct, which is why, textually speaking, and there's no contrary legislative history, Congress meant to apply this to some, but not all types of unlawful conduct -- of unlawful -- of employment practices.
And the reason that that's perfectly rational is three things.
First, as I mentioned, this is the secondary of them.
Second, it sweeps -- by its nature, retaliation sweeps so much broader, well outside of the traditional workplace.
While Congress was thinking about jettisoning traditional burdens of proof and relieving a plaintiff of the -- of the traditional burden of proving its own case, they could certainly balk at doing that in a much broader setting.
And third, the potential for meritless and abusive suits is particularly pronounced in a retaliation context, because any employee at all can opt into a retaliation claim by making a -- a charge of -- a relevant charge, knowing that -- you know, potentially knowing that, yeah, the writing's on the wall, probably I'm going to get fired.
And if you then flip the burden so the plaintiff doesn't have prove its own claim, the plaintiff can point to the timing of his own complaint, the inevitable employment action would have happened anyway, and the proximity, then, is probably going to get the plaintiff past summary judgment.
Now, what you're then looking at is an expensive and unpredictable trial, most defendants will be forced to settle even meritless claims.
And the EEOC's own statistics show that, one, retaliation claims have become all the rage.
They are the -- the leading type of claims being raised these days.
And, two, the EEOC's reasonable cause determination show that only 5 percent of them have even reasonable cause to support them, which is not an especially high standard.
So when we're talking about a potential massive amount and growing amount of mostly meritless but expensive litigation to defend, it's perfectly reasonable for Congress to decide, well, within the scope of what Price Waterhouse was exactly dealing with -- to get back -- to get back to Justice Kagan's point -- we'll have -- we'll allow some mixed motive treatment there, but that'll be it now, because -- because there are other issues with retaliation that caused -- caused Congress to reasonably do exactly what it so clearly did in statutory text.
Justice Sonia Sotomayor: But that policy argument just says Jackson's wrong.
Daryl L Joseffer: No, not at all.
Justice Sonia Sotomayor: It just doesn't make any -- much sense to me that in 1991, when they were thinking about Price Waterhouse burdens, that somehow they thought that it should now apply that burden differently to retaliation.
Daryl L Joseffer: It -- it was -- the same argument was rejected in Gross, right?
Because in Gross, you had another absolutely identical provision to -- to the -- to the two Title VII provisions at issue here.
And this Court held that, no, what Congress was doing in 1991 was specifically authorizing mixed motive treatment when it wanted and otherwise casting what this Court called the strongest possible inference that there would be no other mixed motive treatment.
Justice Stephen G. Breyer: Is -- is this a violation of Title VII?
I don't know the answer.
Smith works for Jones.
Jones' whole job is to supervise Smith and be certain that Smith, a well-known racist, has kept his racism under control.
Smith -- they fired someone -- Smith did -- did some terrible thing and got rid of somebody for racist reasons.
He tells his boss.
His boss knows it.
His boss does nothing about it.
Is the boss violating Section VII?
He -- he had no reason for doing nothing about it.
He himself wasn't a racist.
It was just his job.
But he didn't.
Is he -- is he violated Section VII?
Daryl L Joseffer: If I understand the hypo right, there's no question that the immediate supervisor and the employer--
Justice Stephen G. Breyer: The immediate supervisor does.
Daryl L Joseffer: --But-for, but-for causation.
Justice Stephen G. Breyer: All right.
Daryl L Joseffer: So it's just a supervisory hypo question?
Justice Stephen G. Breyer: --Yes, yes, yes.
So there what we have is somebody is guilty under Section VII.
Even though that individual did not himself discriminate on the basis of race, it was circumstances where the subordinate discriminated on the basis of race.
And yet the -- there's no doubt that m applies to that.
M applies to that, I imagine, unless you're going to start distinguishing within Title VII, are you going to say m doesn't apply to that.
My question's going to be, if m applies to that, then why doesn't it also apply here?
Because you see here, what you have is -- it's at one removed.
It is the individual who is retaliating been retaliated against.
That individual did not discriminate on the basis of race, nor did the individual in Farr read into it, but the whole thing is based on race.
And if sometimes under Section VII simpliciter, people are guilty although the race motive -- the race involvement is one level down.
Why wouldn't you -- that perhaps is too complicated a question, and if you only have five minutes left, so I will take your answer as being,
"Judge, you better think this out on your own. "
Daryl L Joseffer: No, no, no.
Hopefully, I'm keeping up with you.
If not, just tell me.
It seems to me that there were basically two different parts to that.
One is, in terms of your main hypo, your first hypo, I don't know that 2(m) even comes into play because it sounds to me like the intermediate supervisor is clearly liable under 2(a) under a but-for theory.
And then you just get into a vicarious liability question.
I don't think 2(a) gets into that.
Justice Stephen G. Breyer: I would say you are better off keeping your time.
Daryl L Joseffer: I was going to say under 2(m) though, I think the overriding point here is that if I have two thoughts in my head, a bad one, but then I go ahead and treat the person the same way I would have anyhow, then I have done what under Title VII, generally understood, I am supposed to do, which is I treat everyone equally regardless of the bad thought in my head.
And at that point -- and that's why mixed motive claims really threaten to take the statute from one that ensures equal treatment to one that goes into, you know, thought control.
Beyond that, I will take the advice and save my time for rebuttal.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF BRIAN P. LAUTEN ON BEHALF OF THE RESPONDENT
Brian P. Lauten: Mr. Chief Justice, may it please the Court:
It does not make any sense at all for Congress to have created two causation standards under the same statute in 1991 without saying anything about it at all.
There are three good reasons why Congress had not to amend e-3(a) in 1991.
The first is in 1964, that is when e-3(a) was originally drafted.
It was part of the original bill.
5 years later, in 1969 in Sullivan v. Little Hunting Park, this Court held that 42 U.S.C. 1982 included retaliation.
So in 1981, Congress knew that retaliation was encompassed within discrimination.
Point number 2--
Justice Antonin Scalia: Why did they -- why did they include it in a separate section?
If they knew that, why did they have a separate section on retaliation?
Brian P. Lauten: --Well, when Congress added e-2 in, Justice Scalia, it supplemented the Act.
It created a new provision altogether.
Justice Antonin Scalia: I understand that.
Why did they do it if they knew it was already included?
Brian P. Lauten: Well, they didn't have to amend e-3(a) because there were policy -- the Burlington Northern case, for example, where this Court held that retaliation is considerably broader, that provision, where the Court held that retaliation in Burlington actually went beyond conditions in the workplace.
That was the second reason.
And the third reason is, imagine if they had amended e-3(a) or if they had deleted or repealed it.
We would be here saying, well, why did they do that if they had already knew in Sullivan since 1964, why would they amend the Act?
E-2(m) on its text applies to e-3(a).
Congress could have very well put an e-2(m) under this section.
It could have very well put an e-2(m), an individual's race, color, religion, sex, national origin.
But what it did is it said a complaining party must demonstrate, and then it lists those things.
And then it says “ for any employment practice ”.
E-3(a) specifically defines retaliation as an unlawful employment practice.
So the text of e-2(m), which, again, was a new provision altogether -- Congress did not go in and amend e-2(a) through e-2(d) as it easily could have done, but it created a new provision.
The motivating factor--
Justice Samuel Alito: I take you back to your opening statement that there is no reason why Congress might have wanted to have a different standard for substantive discrimination and retaliation.
Would you disagree with the proposition that the motivating factor analysis creates special problems in the retaliation -- in the retaliation context?
Brian P. Lauten: --Not at all, Your Honor, and this is the reason, and this Court needs to keep this in mind.
Motivating factor causation is not going away no matter what this Court holds today.
It's in e-2(m), it is going to apply to substantive discrimination.
With respect to how it's submitted--
Justice Samuel Alito: Well, I know it's not going to go away.
Let me give you this example, this hypothetical.
An employee thinks that he is about to be fired.
And let's -- let's suppose that the employer really has a good, nondiscriminatory reason for firing the employee.
On the eve of that the employee makes a spurious charge of discrimination and does it in a way to maximize the embarrassment to the employer.
Then the employer formally makes the decision to terminate the employee.
And what the employer says at that time is, we were going to fire so and so anyway for all these other reasons, but now because he has done this and really embarrassed us publicly, we are really happy that we are going to fire him.
Now, how does that work out under the motivating factor analysis?
Brian P. Lauten: --Very easily, because in that situation the employer wouldn't even have to prove the affirmative defense because the employee wouldn't be able to prove a violation of the Act because it was a spurious claim.
That's point number 1.
Justice Samuel Alito: Is that correct?
Can't you -- can't you succeed on a retaliation claim if your underlying substantive claim is invalid.
Brian P. Lauten: --You cannot prevail on a retaliation claim under e-2(m) without proving first a violation of the Act, and that is the distinction Congress made in e-2(m) for Price Waterhouse, whereas Price Waterhouse held there was no violation as long as the affirmative defense was proven.
What Congress did in 1991 was say once you prove a motivating factor and a violation of the Act, only then do you get to the affirmative defense.
Justice Antonin Scalia: No, I really don't understand -- I didn't understand the law to be that.
You mean if an employee files a discrimination claim, and then is fired -- let's assume there is no other reason except retaliation; he's fired for filing that claim -- he has to prove not only that he was fired in retaliation for filing, but also that his claim was valid?
Is that what you are saying the law is?
Brian P. Lauten: No, no, no, I'm not saying that.
I'm not saying that.
Justice Antonin Scalia: I thought that's what you were saying.
I thought that's what Justice Alito's question asked.
Brian P. Lauten: No.
What I'm saying is that that -- and you can look at the jury instructions in this case -- you would have to prove that the employer acted in part to retaliate, and -- for the protected activity.
Justice Antonin Scalia: In his hypothetical, he did.
Justifiable retaliation, as far as I am concerned.
I mean, the employer files a frivolous claim to embarrass the employer.
He can't erase that from his mind.
That's one of the reasons he fired this guy.
And you say: Ooh, if that's one of the reasons, no matter how frivolous or anything else, he's liable under the law.
Brian P. Lauten: Well, here's -- here's our position, Justice Scalia.
Our position, number one, is the Court doesn't even get to that issue because the statute applies.
If e-2(m) applies, then motivating factor causation applies.
If it doesn't apply, if the Court rejects our statutory argument, then by default we are under the Price Waterhouse framework and motivating factor causation should apply.
But to the policy question, Justice Alito--
Justice Antonin Scalia: I don't understand that.
Do you understand that?
Brian P. Lauten: --Substantive discrimination, the teeth of the Act, relies on employees being able to cooperate and be witnesses, that they have the guts to come forward.
If you take that protection away, you are taking the teeth out of Title VII.
Justice Samuel Alito: Well, no, I understand that.
And it's not a policy question.
It's a question of interpreting the statute.
But I understood your lead argument in favor of a particular interpretation of the statute to be it can't mean what the Petitioner wants it to mean, what the Petitioner says it means, because that would make no sense.
And the point of my question was to explore the possibility that there might be a very good reason why Congress would want a different causation standard for substantive discrimination and retaliation.
Brian P. Lauten: There is nothing in the legislative history in 1991 that supports that.
In fact, I would argue the contrary.
When Congress passed Section 101 in 1991, which is 42 U.S.C. 1981, in that provision where it overruled Patterson v. McLean and the Court held that retaliation was encompassed within the substantive discrimination provision, which is what the Court held in CBOCS v. Humphries, in the House bill that accompanied the Act it said that Congress intended for retaliation to apply to Section 101, but it's not in the section at all that became 101 that was in CBOCS.
In Gomez-Perez v. Potter, as you well know, this Court held the absence of retaliation provision under the Federal sector provision did not undermine the argument that retaliation was included, even though Congress had a separate anti-retaliation provision in the private sector.
And there was a very good argument in the court of appeals, as you well know, that, hey, if Congress wanted an anti-retaliation provision, why wouldn't they have done so, they did it on the private part.
And there were arguments the other way, that there was already a civil service remedy in place.
And this Court rejected that argument, relied on Sullivan, Jackson v. Birmingham, and those trilogy of cases--
Chief Justice John G. Roberts: Over a powerful dissent.
Justice Stephen G. Breyer: I would just like to get to what I think is one of their arguments and I'm having some -- the argument is purely linguistic, all right?
And they say, read m.
M says race is a motivating factor in an unfair employment situation.
Now, we look to what the unfair employment situation is at the beginning unfair employment practice.
It is to dismiss a person because of race, all right?
So obviously, it applies.
Now we look to the definition that we're at issue in here.
It says it's an unfair labor practice to dismiss a person because of retaliation.
Now, retaliation for what?
For race, that's true.
But we're -- we couldn't care less about whether that race is part or a little bit or it's all -- it could even be totally unjustified.
What we're interested in is the retaliation.
So they say, you see, the words of (m) do not speak about race.
They speak about retaliation.
They speak about race.
So, whatever the policy reasons are, you can't do it any more than if you have a statute that refers to carrots and you try to put in a beet.
You just can't do it.
Now, that's the answer -- I -- I would like to hear an answer.
Brian P. Lauten: --Yes, sir, Your Honor.
I think the point is that -- that complaining about race is race discrimination.
The Court held that in Sullivan.
Complaining about gender discrimination is -- it's gender discrimination, Jackson v. Birmingham.
Justice Stephen G. Breyer: So you have to say retribution for race is race.
Brian P. Lauten: --Retribution?
Justice Stephen G. Breyer: Yes.
Brian P. Lauten: Yes.
Justice Stephen G. Breyer: Now -- now, what I was looking for, perhaps without success, is some other example that has nothing to do with retribution, but where that's clearly so.
That's why the example came into my mind that it is possible that you could, under the basic unfair employment section, find a person liable of race discrimination even though that person himself was not motivated by race, but perhaps had an obligation to report a race discrimination, which he failed to do because he wanted to go to the racetrack.
I'm looking for some other -- is there any other example in the history of these statutes where we've said, you, Mr. Jones or Ms. Smith, you are guilty of race discrimination, even though that's because of your responsibilities, because of what you did or didn't do, it's not because you yourself held the motive, but you -- you'd attribute the motive to them for reasons to do with the statute.
Is there -- does that ring any bell at all?
Brian P. Lauten: If -- if I understand your question, what I would default to are the three or four cases that I mentioned: Sullivan, Jackson v. Birmingham, CBOCS v. Humphries, Gomez-Perez v. Potter, where this Court has consistently held that complaining about discrimination is intentional discrimination.
And I want to bring up--
Justice Stephen G. Breyer: Now, I have looked--
Justice Antonin Scalia: But -- but not under this statute.
What I'm concerned about is the text of this statute, which simply destroys your argument that there's no difference between retaliation and race discrimination.
Section 2000e-5(g)(2)(A) limits remedies where a defendant acted -- and this is a quote from the statute --
"for any reason other than discrimination on -- on account of race, color, religion, sex, or national origin, or in violation of Section 2000e-3(a) of this title. "
It -- it separates out 2000e-3(a), retaliation, from the other aspects of race, color, religion, sex, or national origin discrimination.
Brian P. Lauten: --Justice Scalia, that's incorrect, and this is why.
This is -- this is exactly my point.
5(g)(2)(A), the text of that, that was drafted by the 1964 Congress.
That was a part of the original bill.
5 years after that text came through, this Court held in Sullivan v. Little Hunting Park that retaliation encompasses discrimination.
So why in 1991 would Congress go amend 5(g)(2)(A) from 1964, when it already knew.
Justice Antonin Scalia: Sir, the statute says what it says.
It doesn't matter when Congress put it in there.
The statute has to be read as a whole.
And if you read it as a whole, this provision clearly separates out retaliation from race discrimination.
Brian P. Lauten: That -- that--
Justice Antonin Scalia: Period.
I mean, it doesn't -- I don't have to psychoanalyze Congress and say did they really mean it, blah, blah, blah.
It's there in the statute.
They didn't take it out.
The statute still makes a clear distinction between the two.
Brian P. Lauten: --Justice Scalia, respectfully, that argument is directly contrary to CBOCS v. Humphries, and it's directly contrary to Gomez-Perez, where this Court held that Congress is charged with knowing what this Court is deciding prior to acting.
Chief Justice John G. Roberts: But it would have been so easy.
There -- it's -- it's a set, race, color, religion, sex or national origin.
And why would they leave it out?
Brian P. Lauten: Why would they leave 5(g)(2)(A) out?
Chief Justice John G. Roberts: Why would they leave
"or in violation of Section 2000e-3(a)? "
Brian P. Lauten: Well, here's my response to that.
Chief Justice John G. Roberts: I know your argument is well, look, the Court's already said well, that's -- that's included, but they've got two provisions fairly close to each other, and I don't know, if they're running through the usual list, why they wouldn't have just run through a list as it appeared in (g)(2)(A).
Brian P. Lauten: Well, this is really important.
The word “ retaliation ” is nowhere in Title VII at all.
That's point number 1.
Point number 2 is, if -- Congress could have specifically put in there an individual's race, color, religion, sex or national origin, and clearly, that would have been anchored to e-2(a) to e-2(d).
Instead, it created a different provision altogether, e-2(m), and specifically said a complaining party demonstrates, and it didn't say under this section, and it defines any unlawful employment practice.
And then if you look at e-3(a), it specifically defines what we refer to as retaliation, albeit Title VII doesn't use that word, as an unlawful employment practice.
Now, I want to make this really clear, because the Government is not making this -- this argument.
If you reject our statutory argument, if you reject that argument, and you find that e-2(m) does not govern e-3(a), although we strongly urge the Court to -- to embrace that argument, as the Solicitor General has done as well, but if you reject that argument by default, we're under Price Waterhouse -- juries have been instructed since jury trials started in 1991 under a Price Waterhouse framework in retaliation cases.
And this argument about unwarranted retaliation claims, this is the way we've been doing it since 1991.
This isn't something new.
Juries have been instructed this way since '91.
So this idea about creating new jurisprudence, this is a huge step backwards from the framework we've been working under.
Justice Ruth Bader Ginsburg: But your alternate argument would -- would involve two standards, the one that Congress provided for substantive discrimination, the -- the improvement on -- on Price Waterhouse, and then for retaliation, Price Waterhouse.
Brian P. Lauten: Just--
Justice Ruth Bader Ginsburg: And I started this -- this argument by asking, is there -- in the realm of anti-discrimination law, is there any example where you have the -- the substantive charge governed by one standard and retaliation by another?
Brian P. Lauten: --No, ma'am.
And -- and you brought up a great point.
I am aware -- true to Justice Kagan's point earlier -- I am aware of nowhere in American history of Congress ever creating two causation standards for retaliation and discrimination, especially under the same statute.
Justice Antonin Scalia: It might be a good idea, though, and -- and if so, Congress can do it, right?
Brian P. Lauten: Well, that's--
Justice Antonin Scalia: I mean, the issue is whether this statute does it or not.
The fact that nobody has ever done it before, what difference does that make?
Brian P. Lauten: --Well, I think the Court has to interpret the Act, but going back to Judge Ginsburg's--
Justice Anthony Kennedy: Do -- do you agree with the Government's position that the limited affirmative defense provisions Congress enacted, that is to say, limited damages when there's multiple or mixed motives would also apply to retaliation cases?
Brian P. Lauten: --Absolutely.
If -- if this Court embraces our argument, 5(g)(2)(B) would apply to retaliation.
But I want to -- this is really important.
Judge Ginsburg brought up a great point.
If you do the fallback to Price Waterhouse, it doesn't create two causation standards.
The juries are going to be instructed the same way.
The only thing that's going to happen is if they prove the affirmative defense, it's a complete bar.
Whereas, if you're under the e-2(m) amendment, it goes to the remedy, but that is an issue at the time of judgment.
So no, there -- there won't be two causation standards under Title VII.
Justice Samuel Alito: Price Waterhouse is a little different from subsection (m) though, isn't it?
You have to have proof of -- you have to have direct evidence of a substantial -- direct and substantial evidence before you get into Price Waterhouse, right?
You don't need that under subsection (m).
Brian P. Lauten: I don't have -- I don't have an answer for that.
The answer is, I do not know.
My -- my belief is that e-2(m) and 5(g)(2)(B) -- the distinction e-2(m) makes is that it makes it a violation of the Act to prove an illegal motive, whereas in Price Waterhouse, you haven't violated the Act at all until the affirmative defense is disproved.
So that that is the distinction with e-2(m).
5(g)(2)(B) just goes to the remedy, whereas the affirmative defense of Price Waterhouse was a complete bar.
So my point is, is that even if the Court by default finds that e-2(m) does not apply, you are not exchanging or creating two standards.
All that is going to happen is that if the affirmative defense is prevailed upon under the default Price Waterhouse standard, it's a complete bar, whereas 5(g)(2)(B) limits the remedies.
That's the only distinction.
Justice Samuel Alito: Isn't it the case that Justice O'Connor's opinion in Price Waterhouse required direct evidence and substantial evidence before there was a shift in the burden of proof.
Brian P. Lauten: I think judge -- I think Justice O'Connor in her concurrence did say direct evidence under Price Waterhouse, albeit six judges agreed in 1989 that motivating factor causation applies.
The -- I guess the last point that I want to make is this Court really needs to consider this record on its face.
Dr. Nassar, after going through months of discrimination, finally reports that he's leaving.
In this record, Dr. Fitz admitted to Dr. Keiser.
Dr. Keiser, a white Baptist supervisor to Dr. Nassar, goes and -- and reports it.
Chief Justice John G. Roberts: Thank you, counsel.
Brian P. Lauten: Sorry.
Thank you for your time.
Chief Justice John G. Roberts: Ms. Sherry.
ORAL ARGUMENT OF MELISSA ARBUS SHERRY, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT
Melissa Arbus Sherry: Mr. Chief Justice, and may it please the Court:
I want to start, Justice Alito, with your question as to why it would make sense or why it might make sense for Congress to adopt a different causation standard with respect to substantive discrimination on the one hand and retaliation on the other.
And what that question reveals is what, Justice Kagan, you had mentioned.
There is not a single statute that Petitioner can point to and not a single statute that I am aware of where Congress has ever expressly adopted two different causation standards with respect to intentional discrimination under the same statute.
Justice Anthony Kennedy: But I thought -- I thought the thrust of Justice Alito's question was that retaliation claims are -- are now quite common, and they can almost be used as a defensive mechanism, as a defense when you know you are about to be hired.
And if that's true, shouldn't we be very careful about the causation standard?
Melissa Arbus Sherry: And on that--
Justice Anthony Kennedy: And so -- so that -- that was the thrust of -- of his question.
Melissa Arbus Sherry: --And -- and I want to address that because I don't think that's quite right.
You can't just scream “ Discrimination ” when you're, you know, when the writing is on the wall and you know you're going to get fired.
As this Court recognized in Clark County, the courts of appeals have uniformly in opposition cases required there to be a reasonable good faith belief that the discrimination actually occurred.
So if we are talking about truly frivolous claims, I know I am going to get fired, you know, I might as well say my boss is, you know, sexually harassing me, that's not going to happen; those cases are going to be weeded out.
The other point I would make--
Chief Justice John G. Roberts: Where are they -- where are they going to be weeded out?
On summary judgment or on -- after trial?
Melissa Arbus Sherry: --At summary judgment.
And they are weeded out at summary judgment.
In cases -- there needs to be a protected activity, and it is not a protected activity if your claim of discrimination -- you don't have a reasonable belief in that claim.
Again, you can't just scream “ Discrimination ” as they are kicking you out the door.
The other point I would--
Justice Samuel Alito: That's -- that's a fair point, but it's, like, if we change it a little bit so that it's -- it's not frivolous, but it is clearly groundless once its examined, then you still have the problem.
Melissa Arbus Sherry: --And then I don't think it's as severe of a problem as Your Honor is suggesting, for a couple of different reasons.
Number one, if you are positing a situation where there is clear evidence that the employer would have made the same decision regardless, that is a defense that is available to the employer and there is no reason they couldn't seek partial summary judgment with respect to that.
That severely limits the remedies that are available.
Justice Antonin Scalia: Excuse me.
I don't understand.
Melissa Arbus Sherry: In circumstances where the employer would have made the same decision--
Justice Antonin Scalia: Right.
Melissa Arbus Sherry: --even without the improper motive--
Justice Antonin Scalia: Yes.
Melissa Arbus Sherry: --that is a defense under (g)(2)(B), and it's something that the employer could certainly raise under partial summary judgment that would severely limit the remedies available.
The other point I would is it does still needs to be a motivating factor.
It needs to actually play a role in the employment decision, and so that is the standard.
And it's a standard that, you know, that Congress has adopted clearly with respect to substantive discrimination claims.
And if I could turn now to the language of the statute because that is our primary argument.
If you look at the language--
Chief Justice John G. Roberts: Just before you do that--
Melissa Arbus Sherry: --Sure.
Chief Justice John G. Roberts: --because I understood we are talking about what possible reason there could be for drawing this distinction.
It seems to me that the protection against discrimination -- race, color, religion, sex -- that sets forth the basic principle of -- of fair and equal treatment.
The anti-retaliation provision is more functional.
The way you protect against that discrimination is you make sure people don't retaliate when they complain about it.
Now that seems to me to be an order of -- of hierarchy, removed from the basic principle.
So perhaps you would have a different standard of causation when you deal with that.
Melissa Arbus Sherry: And I don't think it is, for the reasons that this Court talked about in Burlington Northern and in Thompson and in Crawford.
And what the Court said in those cases is that the two are linked together.
You do need to have robust retaliation protections in order to ensure that that primary purpose, that discrimination, is outside of the workplace.
And so if employees are worried or afraid to come forward and report discrimination, the discrimination is going to persist.
It's not going to be remedied.
And so the two are linked together and it makes sense to have the same--
Chief Justice John G. Roberts: That -- I think that was my point, that they are linked together but they are at different levels.
I mean, the -- you protect against retaliation so that the protection against race, color, national origin can be vindicated.
Melissa Arbus Sherry: --And I -- I agree with Your Honor.
I think you -- that is the reason you protect against retaliation.
And in order to have sufficient protections so that interest can be vindicated, individual employees need to feel comfortable coming forward.
Justice Samuel Alito: The problem is--
Melissa Arbus Sherry: And you have a--
Justice Samuel Alito: --The problem is this: It's one thing to say, and it's a good thing to say to employers: When you are making employment decisions, you take race out of your mind, take gender out of your mind, take national origin out of your mind.
It's not something you can even think about.
But when you are talking about retaliation, when you are talking about an employer who has been, perhaps publicly, charged with discrimination and the employer knows that the charge is not a good charge, it's pretty -- it's very, very difficult to say to that employer and very difficult for the employer to say: I'm going to take this completely out of my mind.
I'm not even going to think about the fact that I am -- have been wrongfully charged with discrimination.
Isn't that a real difference?
Melissa Arbus Sherry: --I don't think it is and I think it's significant if we are talking about distinguishing between retaliation -- It's significant that Congress in a number of whistleblower statutes, so specifically retaliation statutes, has adopted a contributing factor, a motivating factor standard, and in fact has adopted a same-decision defense where you need clear and convincing evidence.
So I think Congress's judgment is that that distinction is not one that should be made, that it is--
Justice Antonin Scalia: You -- you talk about Congress as though it's a continuing body out there, the same people, and would the same people that did this do that.
They are not the same people.
I don't know what Congress it was that passed this particular act versus other antidiscrimination acts.
Some of them may have been Democratic Congresses and others may have been Republican Congresses.
To -- to assume that there is one Congress out there that -- that has to operate logically in all these areas, it seems to me unrealistic.
And -- and the best thing we can be guided by is simply the text that Congress adopted, however the makeup of that Congress happened to be.
Melissa Arbus Sherry: --And thank you, Justice Scalia.
I am actually happy to turn to the text.
I think it's important to look at the language of Subsection (m) and it's on page 15a of our brief.
And if you follow that language, it starts off very plainly saying as
"Except as otherwise provided in Subchapter (m), unlawful employment practice is established. "
This is a means of proving an unlawful employment practice.
And we know when you look at 3a, which is on page 17a of our brief, that retaliation is an unlawful employment practice.
Congress used that phrase “ unlawful employment practice ” in Subsection (m).
It's an unadorned phrase.
It didn't limit it.
It didn't say “ under this section ”; it didn't say “ under Section 2000e-2(a) ”.
It said “ unlawful employment practice ”.
And if you continue on:
"When the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor. "
And we know under this Court's cases under Gomez-Perez, under CBOCS, under Jackson and Sullivan that race is a motivating factor in an employment decision that is based on retaliation when you've complained about race discrimination.
And so the language of (m), the plain language, clearly encompasses the retaliation claims in Title VII.
And so the only argument, I believe, that Petitioner is making is that there are things elsewhere in the statute that might make you think otherwise here.
And we would argue that none of them--
Justice Anthony Kennedy: Well, but under -- under that analysis, you don't need the final clause on page 17a of your brief of 3, “ because he has opposed ”.
Race is enough.
Melissa Arbus Sherry: --I think that defines what the protected activity is.
I don't think it is any different than in Jackson or Gomez-Perez.
In those cases, it was a general discrimination provision, but once retaliation claims are recognized, there -- there still actually needs to be protected activity.
There has to be opposition, there has to be participation of some sort.
And so I don't think it's any different in that respect.
Justice Scalia, you were talking about g-2(a), and if I could just take a moment on that, because that is one of the arguments that Petitioner is making.
My colleague made the point that it was adopted by the 1964 Congress; it was adopted before Sullivan.
And so if I could focus on the 1991 Congress that enacted both subsection (m) and subsection g-2(b), that Congress was acting in light of Sullivan.
And we know it was legislating with full knowledge of Sullivan, because that's exactly what this Court said in CBOCS.
CBOCS involved Section 101, rather, of the 1991 Act; this involves Section 107 of the 1991 Act.
So we know that when Congress was writing (m) and when it was writing g-2(b), it knew, because of Sullivan, that it didn't need extra words.
It didn't need redundant words.
It didn't have to say under Section 2000e-2 and Section 2000e-3; it could simply say exactly what it said in (m), and that would do the trick.
And it's a common rule of statutory interpretation that you don't add extra words if you don't need them.
And so what Congress did in (m) is it adopted exactly what words it needed to effectuate its purpose, which is to have one causation standard, a motivating factor standard available with respect to all intentional discrimination claims--
Justice Antonin Scalia: But the maxim that you don't add words where you don't need them doesn't -- doesn't help your case.
It hurts your case, because in the other provision that was carried over from the prior law, you -- you were making a nullity of the -- the addition after referring to discrimination on the basis of race, of, you know, retaliation.
Melissa Arbus Sherry: --Your Honor, may I?
To answer that question, it's important -- what happened in 1991, Congress didn't add that language, it didn't amend that language; it simply didn't delete it.
And I think it's completely reasonable when Congress is faced with a choice of deleting language that had been there for 25 years that wasn't a problem, it's just at worst was redundant, chose to leave it in place lest any negative inference arise from the deletion, and simply legislate in subsection (m), in g-2(b), based on the new understanding that the Court adopted in Sullivan.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Joseffer, you have three minutes remaining.
REBUTTAL ARGUMENT OF DARYL L. JOSEFFER ON BEHALF OF THE PETITIONER
Daryl L Joseffer: Thank you.
This case seems to boil down to two very simple legislative drafting rules or interpretive principles.
The first is, from Gross, we know that Congress doesn't relieve the plaintiff of the traditional burden of proof unless it specifically indicates so.
And so then we talk to subsection (m) where the relevant bases are the litany of race, color, sex, religion, and national origin.
So the second interpretive principle is, then, does that litany here encompass, you know, complaining about unlawful conduct and participating in an investigation, which are the protected conduct for purposes of retaliation.
That principle comes straight out of Jackson and Gomez-Perez, that when Congress broadly refers to discrimination on the basis of race in the statute without greater specificity, the Court will read retaliation in.
When Congress breaks it out, the surplusage canon -- and I agree with Justice Scalia, I really didn't understand why they were talking about that -- and also the general canon is the same canon, which is, put differently, is that specific provisions, you know, control over general ones, they're not subsumed within them.
That tells us that when Congress is speaking more specifically, it's speaking more specifically.
Here, that tells Congress very clearly how to amend these statutes when it wishes to, which it does all the time, and how the courts -- and how lower courts should construe them.
In addition, Title VII, as a whole, is especially clear, because the same subsection 2 within Title VII, when it wants to refer to all types of employment discrimination, it will say “ a claim of employment discrimination ”.
And by the way, the 1991 Congress put that provision in there.
So this Congress knew how to say “ any claim of employment discrimination ”, as it did so in subsection (n), which comes right after this one.
Congress will also say “ an unlawful employment practice ” when it's referring to all of them, but when it wants to specifically refer to one subset or another, it does so.
That's a clear, logical, coherent reading of the statute as a whole that every court of appeals to consider the question has adopted.
They're asking you to read various statutory provisions to be surplusage, and there's simply no reason to do so, especially because, looking just at 1991, Congress at that point was not saying, oh, in light of Jackson, we can now just speak more generally.
Because it, specifically in 1991, cross-referenced the anti-retaliation provision of Title VII when it wanted to, and it specifically used broader phrases like “ a claim of employment discrimination ” when it wanted to.
And especially since the whole point of Gross, or much of the point of Gross was to replace a -- a totally unworkable and confusing regime with something that is clear and straightforward, you've done that.
And the question now is whether to retreat back into a jurisprudential morass where, within the very same statute, the drafting rules this Court has otherwise articulated, no longer apply.
The final point I'd make is that, yeah, there's this question about are -- are we treating, you know, retaliation and -- and substantive discrimination differently within one statute, and the answer is, well, yes, as Congress did.
The other way of looking at it is they want to treat retaliation differently in this statute than it's treated in every other statute.
You can -- you can point to similar anomalies across the board, the reason being that Congress has chosen to have two different sections within this area.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Justice Ruth Bader Ginsburg: In two of the decisions announced today, the Court has corralled Title VII, an Act designed to stomp discrimination on the basis of race, color, religion, sex, or national origin in our nation's work places.
Both decisions dilute the strength of Title VII in ways Congress could not have intended.
For that reason, Justices Breyer, Sotomayor, Kagan, and I dissent.
The decision Justice Alito just announced, Vance v. Ball State University, answers the question, who is the supervisor for Title VII purposes?
The answer is important because this Court has held that an employer is vicariously liable for a supervisor's harrassing conduct.
If the harasser is a co-worker and not a supervisor, however, we have held that the employer is not responsible unless the victim of the harassment proves negligence on the part of the employer.
To do so, the employee must show that the employer knew or should have known of the harassing conduct and failed to stop it.
That is a burden not easily carried.
An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability.
The supervisor co-worker distinction makes sense and employee can walk away from harassing co-worker or tell him just to buzz off.
The harassment of a supervisor, however, is harder to avoid, given the control rein held by an in-charge superior.
So, who qualifies as a supervisor?
All agree that an employee with authority to take tangible employment actions that is to hire, fire, promote, demote qualifies.
In addition, the Equal Employment Opportunity Commission, the agency charged with interpretation and administration of Title VII defines as a supervisor, not vaguely, but simply as one, authorized to direct other employees daily work activities.
Notably, the EEOCs definition was accepted by both plaintiff and defendant in this case.
Yet the Court rejects it and confines the supervisory category to those authorized to take tangible employment actions.
Who does that leave out?
A typical and not at all hypothetical example; a female highway maintenance worker is giving assignments by employees called Lead workers.
Sex based invectives are hurled at the female worker and a pornographic image is taped to her locker.
The Lead worker forces her to wash her truck in subzero weather, assigns her to undesirable yard work instead of road crew work, and directs other employees to give her no aid in fixing a malfunctioning heating system in her truck.
Harrassing conduct, conceitedly, yes.
Was the Lead worker in charge of the harassed employee's daily work assignments?
Certainly, but the Lead worker lacked authority to hire or fire or take other tangible employment actions, so under today's decision the Lead worker would be ranked merely a co-worker not supervisor.
As anyone with employment experience can easily grasp in-charge employees authorized to assign and control subordinate employees daily work are aided in accomplishment -- in accomplishing the harassment by the superintending position in which their employer places them, and for that reason, the employer is properly held responsible for their misconduct.
The Court's disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy.
The result, Title VII's capacity to prevent and redress discriminatory conduct is diminished.
I turn now to the decision and now inspire Justice Kennedy, University of Texas Southwestern Medical Center against Nassar.
Dr. Nassar, a physician of Middle Eastern descent, resigned from his position on the medical faculty of the university and in a letter to the chair of internal medicine Nassar attributed his resignation to his superior's discrimination on the basis of his race, religion, and national origin.
Nassar charged that in retaliation for his complaints about his supervisor, the university blocked his employment at an affiliated hospital.
Retaliation in response to complaints of workplace discrimination is proscribed by Title VII.
The Court of Appeals upheld the Jury verdict in Nassar's favor.
The Court today vacates the Court of Appeals' judgment and holds that Nassar cannot prevail unless he shows that the university would not have taken the same action, absent a design to retaliate against him.
The Court reaches this conclusion not withstanding a provision of Title VII 2 (m) explicitly instructing that a plaintiff need show only that race, color, religion, sex, or national origin was a motivating factor in an adverse employment decision and employer's proof that other fact is also a motivated the decision will not defeat the plaintiff's claim.
Section 2 (m) is not in point, the Court says because the provision applies only to claims alleging discrimination based on protective characteristics and does not cover retaliation.
In so holding, the Court departs from a line of our decisions unbroken until today, teaching that retaliation for complaining about discrimination based on protected characteristics is a form of discrimination based on those characteristics.
The Court's departure from precedent recognizing this simple truth is particularly imprudent in Nassar's case.
Section 2 (m) was added to Title VII as part of the 1991 Civil Rights Act passed in response to several decisions of this Court that sharply cut back on the scope and effectiveness of antidiscrimination laws.
In reading (2) (m), to exclude retaliation claims the Court has seized on a provision enacted to strengthen Title VII and turned it into a measure, reducing the force of the ban on retaliation.
Six years ago in Ledbetter against Goodyear Tire & Rubber Company, the Court read Title VII in a similarly restrictive way.
In 2009, Congress corrected that error.
Today, the ball again lies in Congress' court to correct this Court's wayward interpretations of Title VII.
Chief Justice John G. Roberts: Justice Kenney also has our opinion this morning in Case 12-484, University of Texas Southwestern Medical Center versus Nassar.
Justice Anthony Kennedy: When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link between the injury sustained and the wrong that's alleged.
And that connection between wrong and the injury is governed principles of causation and this case requires the Court to define those causation rules and the context of Title VII of the Civil Rights Act of 1964, particularly with reference to employment discrimination.
That Act provides remedies to employees who are injured by employment discrimination and in this case, the Court discusses the causation rules for two categories of employer conduct that's prohibited by Title VII.
The first is what we call “status-based discrimination,” that is discrimination on the basis of race, color, religion, sex, or national origin.
That discrimination is made unlawful by what we can call here Section 2 (a).
The second type of unlawful conduct is under the Act, is employer retaliation for employee's opposition to or an employee's complaints about workplace discrimination and retaliation is prohibited by Section 3 (a), so there's 2 (a) and 3 (a).
The petitioner here is the University of Texas Southwestern Medical Center, respondent, Dr. Nassar is a medical doctor of Middle Eastern descent.
Until July 2006, he was a member of the University faculty and he was also a staff physician at one of its affiliated hospitals.
Now, one of respondent's university supervisors was a Dr. Beth Levine.
And Levine expressed the view that Middle Easterners are lazy and she gave particularly close scrutiny to the respondent's billing practices.
Desiring to escape Levine's oversight, respondent sought an arrangement where he could work at the hospital but not at the university and he reached a tentative deal with the hospital.
Then he quit his teaching job and he sent various administrators a letter describing Levine's alleged harassment.
One of these administrators then contacted the hospital to oppose respondent's hiring.
And he asserted that the institutions affiliation agreement reserved staff physician post for faculty members and the doctor was no longer a member of the faculty.
So, the hospital withdrew its offer.
Respondent then filed suit in federal court.
He alleged the university's opposition was retaliation for his having complained about Levine.
There were other claims as well, but the retaliation claim was the relevant one here.
And on that claim, the jury was instructed that but for causation was not required and applying that standard, the jury found for the respondent and the Court of Appeals for the Fifth Circuit affirmed.
This Court addressed that issue of causation and employment discrimination in a 1989 case, called Price Waterhouse versus Hopkins, and that case allowed recovery on status-based claims under a lessened causation standard.
Congress then amended the statute.
That amendment allowed recovery based on lessened causation, but it did limit the remedies that are available when that test was applied.
Then in the case of Gross versus FBL Financial Services in 2009, this Court considered a different statue that age discrimination in Employment Act and in Gross, the Court held that but for causation, not lessened causation was applicable.
Today, the Court again interprets Title VII and the question is whether the provision that Congress amended, a provision that applies but its terms only to status-based discrimination, should be extended so that it also includes retaliation claims.
And today, the Court holds, it should not be extended to those claims and this holding is consistent with the reasoning of Gross and the analysis is based on an interpretation of the text and structure of Title VII.
Title VII's retaliation provision makes it an unlawful employment practice for an employer to discriminate against any of his employees because he has opposed or supported a complaint that alleges unlawful employment discrimination.
And in general, requiring proof that a certain effect occurred because of a ceratin action, means that the effect would not have happened absent that action.
In the context of this statute, there is no persuasive reason not to give the word “because” the standard meaning.
It is true, as respondent argues that the 1991 Amendment provides for the lessened causation standard for some Title VII claims, but that provision applies by its own terms only to claims alleging discrimination on the basis of race, color, religion, sex or national origin, the status-based claims that were noted here at the outset.
It says nothing about retaliation.
When Congress created that lessened causation standard in 1991, it added this as a part of Section 2, which is Title VII's bar on status-based discrimination, rather than in a statutory section dealing with retaliation.
These textural and structural clues as well as others discussed in greater detail in the opinion show that retaliation claims must be proved according to the normal rule of but for causation and these requires proof that allegedly unlawful action would not have occurred in the absence of a motive to retaliate.
Because the Court of Appeals applied the lessened causation standard rather than the “but for standard” the statute requires, its judgment is vacated.
The case is remanded for further proceedings consistent with this opinion.
Justice Ginsburg has filed a dissenting opinion in which Justices Bryer, Sotomayor, and Kagan join.