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, 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,
(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,
(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.
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.
The Court of Appeals for the Fifth Circuit affirmed in part.
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)).
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,
). 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,
, 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.
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
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.
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).
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).
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,
; Federal Express Corp. v. Holowecki,
552 U. S. 389,
(“[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.
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.
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.
The Court’s reliance on §109(b) of the Civil Rights Act of 1991,
and the Americans with Disabilities Act of 1990 (ADA),
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.
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.
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.
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,
. 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.
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.
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,
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.
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.
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.
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.
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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.