Univ. of Texas Southwestern Medical Center v. Nassar

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

															_________________

															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 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 moti- vated 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 in-
fluence 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 perform- ance,
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 pre- cluded 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

															_________________

															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. Notes 1 The District Court
reduced compensatory damages to $300,000, the statutory cap under
Title VII. See . 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, (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
–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., . 7 The Court’s
assertion that we “confronted a similar structural dispute in
Lehman v. Nakshian, ,” 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 , 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).