SUPREME COURT OF THE UNITED STATES
_________________
No. 12–484
_________________
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, Jus- tice 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 pro- visions 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 pro- hibition 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, Le- vine “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 Hos- pital 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 humili- ated,” 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)). [
3 ]
II
This Court has long
acknowledged the symbiotic relationship between proscriptions on
discrimination and pro- scriptions 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 relation- ship 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 prac- tice”
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, “retalia- tion 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 di- rectly
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 im- plement a
consent judgment. Section 2000e–2(n) applies beyond the
substantive antidiscrimination provisions in §2000e–2;
indeed, it applies beyond Title VII to encom- pass 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 no-
tice 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 retal-
iation 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.
[
7 ]
C
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 de- ference to the EEOC fares
no better. The EEOC’s conclu- sion 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 moti- vated 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 Ti- tle 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 Water- house’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 apply- ing
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. In- deed, 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.