OPINION OF THE COURT GROSS V. FBL FINANCIAL SERVICES, INC. 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-441 JACK GROSS, PETITIONER v. FBL FINANCIAL
SERVICES, INC.

															on writ of certiorari to the united states court of
appeals for the eighth circuit

															[June 18, 2009]

															   Justice Thomas delivered the
opinion of the Court.

															   The question presented by the
petitioner in this case is whether a plaintiff must present direct
evidence of age discrimination in order to obtain a mixed-motives
jury instruction in a suit brought under the Age Discrimination in
Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.
S. C. §621 et seq . Because we hold that such a jury
instruction is never proper in an ADEA case, we vacate the decision
below.

															I

															   Petitioner Jack Gross began
working for respondent FBL Financial Group, Inc. (FBL), in 1971. As
of 2001, Gross held the position of claims administration director.
But in 2003, when he was 54 years old, Gross was reassigned to the
position of claims project coordinator. At that same time, FBL
transferred many of Gross’ job responsibilities to a newly created
position—claims administration manager. That position was given to
Lisa Kneeskern, who had previously been supervised by Gross and who
was then in her early forties. App. to Pet. for Cert. 23a (District
Court opinion). Although Gross (in his new position) and Kneeskern
received the same compensation, Gross considered the reassignment a
demotion because of FBL’s reallocation of his former job
responsibilities to Kneeskern.

															   In April 2004, Gross filed suit
in District Court, alleging that his reassignment to the position
of claims project coordinator violated the ADEA, which makes it
unlawful for an employer to take adverse action against an employee
“because of such individual’s age.” 29 U. S. C. §623(a). The
case proceeded to trial, where Gross introduced evidence suggesting
that his reassignment was based at least in part on his age. FBL
defended its decision on the grounds that Gross’ reassignment was
part of a corporate restructuring and that Gross’ new position was
better suited to his skills. See App. to Pet. for Cert. 23a
(District Court opinion).

															   At the close of trial, and over FBL’s
objections, the District Court instructed the jury that it must
return a verdict for Gross if he proved, by a preponderance of the
evidence, that FBL “demoted [him] to claims projec[t] coordinator”
and that his “age was a motivating factor” in FBL’s decision to
demote him. App. 9–10. The jury was further instructed that Gross’
age would qualify as a “ ‘motivating factor,’ if [it] played a
part or a role in [FBL]’s decision to demote [him].” Id. ,
at 10. The jury was also instructed regarding FBL’s burden of
proof. According to the District Court, the “verdict must be for
[FBL] … if it has been proved by the preponderance of the evidence
that [FBL] would have demoted [Gross] regardless of his age.” Ibid. The jury returned a verdict for Gross, awarding him
$46,945 in lost compensation. Id. , at 8.

															   FBL challenged the jury instructions on
appeal. The United States Court of Appeals for the Eighth Circuit
reversed and remanded for a new trial, holding that the jury had
been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins , 490 U. S. 228 (1989).
See 526 F. 3d 356, 358 (2008). In Price Waterhouse ,
this Court addressed the proper allocation of the burden of
persuasion in cases brought under Title VII of the Civil Rights Act
of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et
seq ., when an employee alleges that he suffered an adverse
employment action because of both permissible and impermissible
considerations— i.e. , a “mixed-motives” case. 490 U. S., at
232, 244–247 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion,
see id. , at 231–258, Justices White and O’Connor
separately concurred in the judgment, see id. , at 258–261
(opinion of White, J.); id. , at 261–279 (opinion of
O’Connor, J.), and three Justices dissented, see id. , at
279–295 (opinion of Kennedy, J.). Six Justices ultimately agreed
that if a Title VII plaintiff shows that discrimination was a
“motivating” or a “ ‘substantial’ ” factor in the
employer’s action, the burden of persuasion should shift to the
employer to show that it would have taken the same action
regardless of that impermissible consideration. See id. ,
at 258 (plurality opinion); id. , at 259–260 (opinion of
White, J.); id. , at 276 (opinion of O’Connor, J.). Justice
O’Connor further found that to shift the burden of persuasion to
the employer, the employee must present “direct evidence that an
illegitimate criterion was a substantial factor in the [employment]
decision.” Id. , at 276.

															   In accordance with Circuit precedent, the
Court of Appeals identified Justice O’Connor’s opinion as
controlling. See 526 F. 3d, at 359 (citing Erickson v. Farmland Industries, Inc. , 271 F. 3d 718, 724 (CA8
2001)). Applying that standard, the Court of Appeals found that
Gross needed to present “[d]irect evidence … sufficient to support
a finding by a reasonable fact finder that an illegitimate
criterion actually motivated the adverse employment action.” 526
F. 3d, at 359 (internal quotation marks omitted). In the Court
of Appeals’ view, “direct evidence” is only that evidence that
“show[s] a specific link between the alleged discriminatory animus
and the challenged decision.” Ibid. (internal quotation
marks omitted). Only upon a presentation of such evidence, the
Court of Appeals held, should the burden shift to the employer
“ ‘to convince the trier of fact that it is more likely than
not that the decision would have been the same absent consideration
of the illegitimate factor.’ ” Ibid. (quoting Price Waterhouse , supra , at 276 (opinion of
O’Connor, J.)).

															   The Court of Appeals thus concluded that the
District Court’s jury instructions were flawed because they allowed
the burden to shift to FBL upon a presentation of a preponderance
of any category of evidence showing that age was a
motivating factor—not just “direct evidence” related to FBL’s
alleged consideration of age. See 526 F. 3d, at 360. Because
Gross conceded that he had not presented direct evidence of
discrimination, the Court of Appeals held that the District Court
should not have given the mixed-motives instruction. Ibid. Rather, Gross should have been held to the burden of persuasion
applicable to typical, non-mixed-motives claims; the jury thus
should have been instructed only to determine whether Gross had
carried his burden of “prov[ing] that age was the determining
factor in FBL’s employment action.” See ibid. We granted certiorari, 555 U. S. ___ (2008),
and now vacate the decision of the Court of Appeals.

															II

															   The parties have asked us to
decide whether a plaintiff must “present direct evidence of
discrimination in order to obtain a mixed-motive instruction in a
non-Title VII discrimination case.” Pet. for Cert. i. Before
reaching this question, however, we must first determine whether
the burden of persuasion ever shifts to the party defending an
alleged mixed-motives discrimination claim brought under the
ADEA.[ Footnote 1 ] We hold that
it does not.

															A

															   Petitioner relies on this Court’s
decisions construing Title VII for his interpretation of the ADEA.
Because Title VII is materially different with respect to the
relevant burden of persuasion, however, these decisions do not
control our construction of the ADEA.

															   In Price Waterhouse , a
plurality of the Court and two Justices concurring in the judgment
determined that once a “plaintiff in a Title VII case proves that
[the plaintiff’s membership in a protected class] played a
motivating part in an employment decision, the defendant may avoid
a finding of liability only by proving by a preponderance of the
evidence that it would have made the same decision even if it had
not taken [that factor] into account.” 490 U. S., at 258; see also id. , at 259–260 (opinion of White, J.); id. , at
276 (opinion of O’Connor, J.). But as we explained in Desert
Palace, Inc. v. Costa , 539 U. S. 90 , 94–95 (2003), Congress
has since amended Title VII by explicitly authorizing
discrimination claims in which an improper consideration was “a
motivating factor” for an adverse employment decision. See 42 U.
S. C. §2000e–2(m) (providing 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” (emphasis added));
§2000e–5(g)(2)(B) (restricting the remedies available to plaintiffs
proving violations of §2000e–2(m)).

															   This Court has never held that this
burden-shifting framework applies to ADEA claims. And, we decline
to do so now. 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.” Federal Express Corp. v. Holowecki , 552 U. S.
___, ___ (2008) (slip op., at 2). Unlike Title VII, the ADEA’s text
does not provide that a plaintiff may establish discrimination by
showing that age was simply a motivating factor. Moreover, Congress
neglected to add such a provision to the ADEA when it amended Title
VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it
contemporaneously amended the ADEA in several ways, see Civil
Rights Act of 1991, §115, 105 Stat. 1079; id. , §302, at
1088.

															   We cannot ignore Congress’ decision to amend
Title VII’s relevant provisions but not make similar changes to the
ADEA. When Congress amends one statutory provision but not another,
it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co. , 499 U. S. 244 , 256
(1991). Furthermore, as the Court has explained, “negative
implications raised by disparate provisions are strongest” when the
provisions were “considered simultaneously when the language
raising the implication was inserted.” Lindh v. Murphy , 521
U. S. 320 , 330 (1997). As a result, the Court’s interpretation
of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse .[ Footnote 2 ]

															B

															   Our inquiry therefore must focus
on the text of the ADEA to decide whether it authorizes a
mixed-motives age discrimination claim. It does not. “Statutory
construction must begin with the language employed by Congress and
the assumption that the ordinary meaning of that language
accurately expresses the legislative purpose.” Engine Mfrs.
Assn. v. South Coast Air Quality Management Dist. , 541 U. S. 246 ,
252 (2004) (internal quotation marks omitted). The ADEA provides,
in relevant part, 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.” 29 U. S. C.
§623(a)(1) (emphasis added).

															   The words “because of” mean “by
reason of: on account of.” 1 Webster’s Third New International
Dictionary 194 (1966); see also 1 Oxford English Dictionary 746
(1933) (defining “because of” to mean “By reason of , on
account of ” (italics in original)); The Random House
Dictionary of the English Language 132 (1966) (defining “because”
to mean “by reason; on account”). Thus, the ordinary meaning of the
ADEA’s requirement that an employer took adverse action “because
of” age is that age was the “reason” that the employer decided to
act. See Hazen Paper Co. v. Biggins , 507 U. S. 604 , 610
(1993) (explaining that the claim “cannot succeed unless the
employee’s protected trait actually played a role in [the
employer’s decisionmaking] process and had a determinative
influence on the outcome ” (emphasis added)). To establish a
disparate-treatment claim under the plain language of the ADEA,
therefore, a plaintiff must prove that age was the “but-for” cause
of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co. , 553 U. S. ___, ___
(2008) (slip op., at 14) (recognizing that the phrase, “by reason
of,” requires at least a showing of “but for” causation (internal
quotation marks omitted)); Safeco Ins. Co. of America v. Burr , 551 U.
S. 47 , 63–64, and n. 14 (2007) (observing that “[i]n common
talk, the phrase ‘based on’ indicates a but-for causal relationship
and thus a necessary logical condition” and that the statutory
phrase, “based on,” has the same meaning as the phrase, “because
of” (internal quotation marks omitted)); cf. W. Keeton, D. Dobbs,
R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265
(5th ed. 1984) (“An act or omission is not regarded as a cause of
an event if the particular event would have occurred without
it”).[ Footnote 3 ]

															   It follows, then, that under §623(a)(1), the
plaintiff retains the burden of persuasion to establish that age
was the “but-for” cause of the employer’s adverse action. Indeed,
we have previously held that the burden is allocated in this manner
in ADEA cases. See Kentucky Retirement Systems v. EEOC , 554 U. S. ___, ___–___, ___–___ (2008) (slip op., at
2–4, 11–13); Reeves v. Sanderson Plumbing Products,
Inc. , 530 U. S. 133 , 141, 143 (2000). And
nothing in the statute’s text indicates that Congress has carved
out an exception to that rule for a subset of ADEA cases. Where the
statutory text is “silent on the allocation of the burden of
persuasion,” we “begin with the ordinary default rule that
plaintiffs bear the risk of failing to prove their claims.” Schaffer v. Weast , 546 U. S. 49 , 56 (2005);
see also Meacham v. Knolls Atomic Power
Laboratory , 554 U. S. ___, ___ (2008) (slip op., at 6)
(“Absent some reason to believe that Congress intended otherwise, …
we will conclude that the burden of persuasion lies where it
usually falls, upon the party seeking relief” (internal quotation
marks omitted)). We have no warrant to depart from the general rule
in this setting.

															   Hence, the burden of persuasion necessary to
establish employer liability is the same in alleged mixed-motives
cases as in any other ADEA disparate-treatment action. A plaintiff
must prove by a preponderance of the evidence (which may be direct
or circumstantial), that age was the “but-for” cause of the
challenged employer decision. See Reeves , supra ,
at 141–143, 147.[ Footnote
4 ]

															III

															   Finally, we reject petitioner’s
contention that our interpretation of the ADEA is controlled by Price Waterhouse , which initially established that the
burden of persuasion shifted in alleged mixed-motives Title VII
claims.[ Footnote 5 ] In any
event, it is far from clear that the Court would have the same
approach were it to consider the question today in the first
instance. Cf. 14 Penn Plaza LLC v. Pyett , 556 U.
S. ___, ___ (2009) (slip op., at 21) (declining to “introduc[e] a
qualification into the ADEA that is not found in its text”); Meacham , supra , at ___ (slip op., at 16)
(explaining that the ADEA must be “read … the way Congress wrote
it”).

															   Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in
the years since that case was decided that its burden-shifting
framework is difficult to apply. For example, in cases tried to a
jury, courts have found it particularly difficult to craft an
instruction to explain its burden-shifting framework. See, e.g. , Tyler v. Bethlehem Steel Corp. ,
958 F. 2d 1176, 1179 (CA2 1992) (referring to “the murky water
of shifting burdens in discrimination cases”); Visser v. Packer Engineering Associates, Inc. , 924 F. 2d 655,
661 (CA7 1991) (en banc) (Flaum, J., dissenting) (“The difficulty
judges have in formulating [burden-shifting] instructions and
jurors have in applying them can be seen in the fact that jury
verdicts in ADEA cases are supplanted by judgments notwithstanding
the verdict or reversed on appeal more frequently than jury
verdicts generally”). Thus, even if Price Waterhouse was
doctrinally sound, the problems associated with its application
have eliminated any perceivable benefit to extending its framework
to ADEA claims. Cf. Continental T. V., Inc. v. GTE
Sylvania Inc. , 433 U. S. 36 , 47 (1977)
(reevaluating precedent that was subject to criticism and
“continuing controversy and confusion”); Payne v. Tennessee , 501 U. S. 808 , 839–844
(1991) (Souter, J., concurring).[ Footnote 6 ]

															IV

															   We hold that a plaintiff bringing
a disparate-treatment claim pursuant to the ADEA must prove, by a
preponderance of the evidence, that age was the “but-for” cause of
the challenged adverse employment action. The burden of persuasion
does not shift to the employer to show that it would have taken the
action regardless of age, even when a plaintiff has produced some
evidence that age was one motivating factor in that decision.
Accordingly, we vacate the judgment of the Court of Appeals and
remand the case for further proceedings consistent with this
opinion. It is so ordered. Footnote 1 Although the parties did not specifically
frame the question to include this threshold inquiry, “[t]he
statement of any question presented is deemed to comprise every
subsidiary question fairly included therein.” This Court’s Rule
14.1; see also City of Sherrill v. Oneida Indian Nation of
N. Y. , 544
U. S. 197 , 214, n. 8 (2005) (“ ‘Questions not
explicitly mentioned but essential to the analysis of the decisions
below or to the correct disposition of the other issues have been
treated as subsidiary issues fairly comprised by the question
presented’ ” (quoting R. Stern, E. Gressman, S. Shapiro, &
K. Geller, Supreme Court Practice 414 (8th ed. 2002))); Ballard v. Commissioner , 544 U. S. 40 , 46–47, and
n. 2 (2005) (evaluating “a question anterior” to the
“questions the parties raised”). Footnote 2 Justice Stevens argues that the Court must
incorporate its past interpretations of Title VII into the ADEA
because “the substantive provisions of the ADEA were derived in
haec verba from Title VII,” post , at 4 (dissenting
opinion) (internal quotation marks omitted), and because the Court
has frequently applied its interpretations of Title VII to the
ADEA, see post, at 4–6. But the Court’s approach to
interpreting the ADEA in light of Title VII has not been uniform.
In General Dynamics Land Systems, Inc. v. Cline , 540 U. S. 581 (2004), for example, the Court declined to interpret the phrase
“because of … age” in 29 U. S. C. §623(a) 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, see 540 U. S., at 584, 592, n. 5. And the Court has not
definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973),
utilized in Title VII cases is appropriate in the ADEA context. See Reeves v . Sanderson Plumbing Products, Inc. , 530 U. S. 133 , 142 (2000); O’Connor v. Consolidated Coin Caterers Corp. , 517 U. S. 308 ,
311 (1996). In this instance, it is the textual differences between
Title VII and the ADEA that prevent us from applying Price
Waterhouse and Desert Palace to federal age
discrimination claims. Footnote 3 Justice Breyer contends that there is
“nothing unfair or impractical” about hinging liability on whether
“forbidden motive … play[ed] a role in the employer’s decision.” Post , at 2–3 (dissenting opinion). But that is a decision
for Congress to make. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc. , 554 U. S. ___, ___ (2008)
(slip op., at 18). Congress amended Title VII to allow for employer
liability when discrimination “was a motivating factor for
any employment practice, even though other factors also motivated
the practice,” 42 U. S. C. §2000e–2(m) (emphasis added), but
did not similarly amend the ADEA, see supra , at 5–6. We
must give effect to Congress’ choice. See 14 Penn Plaza
LLC v. Pyett , 556 U. S. ___, ___ (2009) (slip op., at
21). Footnote 4 Because we hold that ADEA plaintiffs retain
the burden of persuasion to prove all disparate-treatment claims,
we do not need to address whether plaintiffs must present direct,
rather than circumstantial, evidence to obtain a burden-shifting
instruction. There is no heightened evidentiary requirement for
ADEA plaintiffs to satisfy their burden of persuasion that age was
the “but-for” cause of their employer’s adverse action, see 29 U.
S. C. §623(a), and we will imply none. “Congress has been
unequivocal when imposing heightened proof requirements” in other
statutory contexts, including in other subsections within Title 29,
when it has seen fit. See Desert Palace, Inc. v. Costa, 539 U. S. 90 , 99 (2003); see also, e.g. , 25 U. S. C. §2504(b)(2)(B) (imposing “clear and
convincing evidence” standard); 29 U. S. C. §722(a)(2)(A)
(same). Footnote 5 Justice Stevens also contends that we must
apply Price Waterhouse under the reasoning of Smith v. City of Jackson , 544 U. S. 228 (2005).
See post , at 7. In Smith , the Court applied to
the ADEA its pre-1991 interpretation of Title VII with respect to
disparate-impact claims despite Congress’ 1991 amendment adding
disparate-impact claims to Title VII but not the ADEA. 544 U. S.,
at 240. But the amendments made by Congress in this same
legislation, which added the “motivating factor” language to Title
VII, undermine Justice Stevens’ argument. Congress not only
explicitly added “motivating factor” liability to Title VII, see supra , at 5–6, but it also partially abrogated Price
Waterhouse ’s holding by eliminating an employer’s complete
affirmative defense to “motivating factor” claims, see 42 U.
S. C. §2000e–5(g)(2)(B). If such “motivating factor” claims
were already part of Title VII, the addition of §2000e–5(g)(2)(B)
alone would have been sufficient. Congress’ careful tailoring of
the “motivating factor” claim in Title VII, as well as the absence
of a provision parallel to §2000e–2(m) in the ADEA, confirms that
we cannot transfer the Price Waterhouse burden-shifting
framework into the ADEA. Footnote 6 Gross points out that the Court has also
applied a burden-shifting framework to certain claims brought in
contexts other than pursuant to Title VII. See Brief for Petitioner
54–55 (citing, inter alia , NLRB v. Transportation Management Corp. , 462 U. S. 393 , 401–403
(1983) (claims brought under the National Labor Relations Act
(NLRA)); Mt. Healthy City Bd. of Ed. v. Doyle , 429 U. S. 274 ,
287 (1977) (constitutional claims)). These cases, however, do not
require the Court to adopt his contra statutory position.  The
case involving the NLRA did not require the Court to decide in the
first instance whether burden shifting should apply as the Court
instead deferred to the National Labor Relation Board’s
determination that such a framework was appropriate. See NLRB , supra , at 400–403. And the constitutional
cases such as Mt. Healthy have no bearing on the correct
interpretation of ADEA claims, which are governed by statutory
text. STEVENS, J., DISSENTING GROSS V. FBL FINANCIAL SERVICES, INC. 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-441 JACK GROSS, PETITIONER v. FBL FINANCIAL
SERVICES, INC.

															on writ of certiorari to the united states court of
appeals for the eighth circuit

															[June 18, 2009]

															   Justice Stevens, with whom
Justice Souter, Justice Ginsburg, and Justice Breyer join,
dissenting.

															   The Age Discrimination in
Employment Act of 1967 (ADEA), 29 U. S. C. §621 et
seq. , makes it unlawful for an employer to discriminate
against any employee “because of” that individual’s age, §623(a).
The most natural reading of this statutory text prohibits adverse
employment actions motivated in whole or in part by the age of the
employee. The “but-for” causation standard endorsed by the Court
today was advanced in Justice Kennedy’s dissenting opinion in Price Waterhouse v. Hopkins , 490 U. S. 228 , 279
(1989), a case construing identical language in Title VII of the
Civil Rights Act of 1964, 42 U. S. C. §2000e–2(a)(1). Not only
did the Court reject the but-for standard in that case, but so too
did Congress when it amended Title VII in 1991. Given this
unambiguous history, it is particularly inappropriate for the
Court, on its own initiative, to adopt an interpretation of the
causation requirement in the ADEA that differs from the established
reading of Title VII. I disagree not only with the Court’s
interpretation of the statute, but also with its decision to engage
in unnecessary lawmaking. I would simply answer the question
presented by the certiorari petition and hold that a plaintiff need
not present direct evidence of age discrimination to obtain a
mixed-motives instruction.

															I

															   The Court asks whether a
mixed-motives instruction is ever appropriate in an ADEA case. As
it acknowledges, this was not the question we granted certiorari to
decide.[ Footnote 1 ] Instead,
the question arose for the first time in respondent’s brief, which
asked us to “overrule Price Waterhouse with respect to its
application to the ADEA.” Brief for Respondent 26 (boldface type
deleted). In the usual course, this Court would not entertain such
a request raised only in a merits brief: “ ‘We would normally
expect notice of an intent to make so far-reaching an argument in
the respondent’s opposition to a petition for certiorari, cf. this
Court’s Rule 15.2, thereby assuring adequate preparation time for
those likely affected and wishing to participate.’ ” Alabama v. Shelton , 535 U. S. 654 , 660, n. 3
(2002) (quoting South Central Bell Telephone Co. v. Alabama , 526 U. S. 160 , 171
(1999)). Yet the Court is unconcerned that the question it chooses
to answer has not been briefed by the parties or interested amici curiae . Its failure to consider the views of the
United States, which represents the agency charged with
administering the ADEA, is especially irresponsible.[ Footnote 2 ]

															   Unfortunately, the majority’s
inattention to prudential Court practices is matched by its utter
disregard of our precedent and Congress’ intent. The ADEA provides
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.” 29 U. S. C. §623(a)(1) (emphasis added). As
we recognized in Price Waterhouse when we construed the
identical “because of” language of Title VII, see 42 U. S. C.
§2000e–2(a)(1) (making it unlawful for an employer “to fail or
refuse to hire or to discharge any individual … with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin” (emphasis added)), the most natural reading of
the text proscribes adverse employment actions motivated in whole
or in part by the age of the employee.

															   In Price Waterhouse , we concluded
that the words “ ‘because of’ such individual’s … sex … mean
that gender must be irrelevant to employment decisions.” 490 U. S.,
at 240 (plurality opinion); see also id. , at 260 (White,
J., concurring in judgment). To establish a violation of Title VII,
we therefore held, a plaintiff had to prove that her sex was a
motivating factor in an adverse employment decision.[ Footnote 3 ] We recognized that the employer
had an affirmative defense: It could avoid a finding of liability
by proving that it would have made the same decision even if it had
not taken the plaintiff’s sex into account. Id. , at
244–245 (plurality opinion). But this affirmative defense did not
alter the meaning of “because of.” As we made clear, when “an
employer considers both gender and legitimate factors at the time
of making a decision, that decision was ‘because of’ sex.” Id. , at 241; see also id. , at 260 (White, J.,
concurring in judgment). We readily rejected the dissent’s contrary
assertion. “To construe the words ‘ because of ’ as
colloquial shorthand for ‘but-for’ causation,” we said, “is to
misunderstand them.” Id. , at 240 (plurality
opinion).[ Footnote 4 ]

															   Today, however, the Court interprets the words
“because of” in the ADEA “as colloquial shorthand for ‘but-for’
causation.” Ibid. That the Court is construing the ADEA
rather than Title VII does not justify this departure from
precedent. The relevant language in the two statutes is identical,
and we have long recognized that our interpretations of Title VII’s
language apply “with equal force in the context of age
discrimination, for the substantive provisions of the ADEA ‘were
derived in haec verba from Title VII.’ ” Trans
World Airlines, Inc. v. Thurston , 469 U. S. 111 , 121
(1985) (quoting Lorillard v. Pons , 434 U. S. 575 , 584
(1978)). See generally Northcross v. Board of Ed. of
Memphis City Schools , 412 U. S. 427 , 428
(1973) (per curiam) . For this reason, Justice Kennedy’s
dissent in Price Waterhouse assumed the plurality’s
mixed-motives framework extended to the ADEA, see 490 U. S., at
292, and the Courts of Appeals to have considered the issue
unanimously have applied Price Waterhouse to ADEA
claims.[ Footnote 5 ]

															   The Court nonetheless suggests that applying Price Waterhouse would be inconsistent with our ADEA
precedents. In particular, the Court relies on our statement in Hazen Paper Co. v. Biggins , 507 U. S. 604 , 610
(1993), that “[a disparate-treatment] claim ‘cannot succeed unless
the employee’s protected trait actually played a role in [the
employer’s decisionmaking] process and had a determinative
influence on the outcome .’ ” Ante , at 8. The
italicized phrase is at best inconclusive as to the meaning of the
ADEA’s “because of” language, however, as other passages in Hazen Paper Co. demonstrate. We also stated, for instance,
that the ADEA “requires the employer to ignore an
employee’s age,” id. , at 612 (emphasis added), and noted
that “[w]hen the employer’s decision is wholly motivated by factors other than age,” there is no
violation, id ., at 611 (emphasis altered). So too, we
indicated the “possibility of dual liability under ERISA and the
ADEA where the decision to fire the employee was motivated both by
the employee’s age and by his pension status,” id. , at
613—a classic mixed-motives scenario.

															   Moreover, both Hazen Paper Co . and Reeves v. Sanderson Plumbing Products, Inc. , 530 U. S. 133 (2000), on which the majority also relies, support the conclusion
that the ADEA should be interpreted consistently with Title VII. In
those non-mixed-motives ADEA cases, the Court followed the
standards set forth in non-mixed-motives Title VII cases including McDonnell Douglas Corp. v. Green , 411 U. S. 792 (1973),
and Texas Dept. of Community Affairs v. Burdine , 450 U. S. 248 (1981). See, e.g ., Reeves , 530 U. S., at 141–143; Hazen Paper Co. , 507 U. S., at 610. This by no means
indicates, as the majority reasons, that mixed-motives ADEA cases should follow those standards. Rather, it underscores
that ADEA standards are generally understood to conform to Title
VII standards.

															II

															   The conclusion that “because
of ” an individual’s age means that age was a motivating
factor in an employment decision is bolstered by Congress’ reaction
to Price Waterhouse in the 1991 Civil Rights Act. As part
of its response to “a number of recent decisions by the United
States Supreme Court that sharply cut back on the scope and
effectiveness of [civil rights] laws,” H. R. Rep. No. 102–40,
pt. 2, p. 2 (1991) (hereinafter H. R. Rep.), Congress
eliminated the affirmative defense to liability that Price
Waterhouse had furnished employers and provided instead that
an employer’s same-decision showing would limit only a plaintiff’s
remedies. See §2000e–5(g)(2)(B). Importantly, however, Congress
ratified Price Waterhouse ’s interpretation of the
plaintiff’s burden of proof, rejecting the dissent’s suggestion in
that case that but-for causation was the proper standard. See
§2000e–2(m) (“[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”).

															   Because the 1991 Act amended only
Title VII and not the ADEA with respect to mixed-motives claims,
the Court reasonably declines to apply the amended provisions to
the ADEA.[ Footnote 6 ] But it
proceeds to ignore the conclusion compelled by this interpretation
of the Act: Price Waterhouse ’s construction of “because
of” remains the governing law for ADEA claims.

															   Our recent decision in Smith v. City of Jackson , 544 U. S. 228 , 240
(2005), is precisely on point, as we considered in that case the
effect of Congress’ failure to amend the disparate-impact
provisions of the ADEA when it amended the corresponding Title VII
provisions in the 1991 Act. Noting that “the relevant 1991
amendments expanded the coverage of Title VII [but] did not amend
the ADEA or speak to the subject of age discrimination,” we held
that “ Wards Cove ’s pre-1991 interpretation of Title VII’s
identical language remains applicable to the ADEA.” 544 U. S., at
240 (discussing Wards Cove Packing Co. v. Atonio , 490 U. S. 642 (1989)); see also Meacham v. Knolls Atomic Power
Laboratory , 554 U. S. ___, ___ (2008) (slip op., at 15). If
the Wards Cove disparate-impact framework that Congress
flatly repudiated in the Title VII context continues to apply to
ADEA claims, the mixed-motives framework that Congress
substantially endorsed surely applies.

															   Curiously, the Court reaches the opposite
conclusion, relying on Congress’ partial ratification of Price
Waterhouse to argue against that case’s precedential value. It
reasons that if the 1991 amendments do not apply to the ADEA, Price Waterhouse likewise must not apply because Congress
effectively codified Price Waterhouse ’s holding in the
amendments. Ante , at 5–6. This does not follow. To the
contrary, the fact that Congress endorsed this Court’s
interpretation of the “because of” language in Price
Waterhouse (even as it rejected the employer’s affirmative
defense to liability) provides all the more reason to adhere to
that decision’s motivating-factor test. Indeed, Congress emphasized
in passing the 1991 Act that the motivating-factor test was
consistent with its original intent in enacting Title VII. See, e.g. , H. R. Rep., pt. 2, at 17 (“When enacting
the Civil Rights Act of 1964, Congress made clear that it intended
to prohibit all invidious consideration of sex, race, color,
religion, or national origin in employment decisions”); id. , at 2 (stating that the Act “reaffirm[ed] that any
reliance on prejudice in making employment decisions is illegal”);
see also H. R. Rep., pt. 1, at 45; S. Rep. No. 101–315,
pp. 6, 22 (1990).

															   The 1991 amendments to Title VII also provide
the answer to the majority’s argument that the mixed-motives
approach has proved unworkable. Ante , at 10–11. Because
Congress has codified a mixed-motives framework for Title VII
cases—the vast majority of antidiscrimination lawsuits—the Court’s
concerns about that framework are of no moment. Were the Court
truly worried about difficulties faced by trial courts and juries,
moreover, it would not reach today’s decision, which will further
complicate every case in which a plaintiff raises both ADEA and
Title VII claims.

															   The Court’s resurrection of the but-for
causation standard is unwarranted. Price Waterhouse repudiated that standard 20 years ago, and Congress’ response to
our decision further militates against the crabbed interpretation
the Court adopts today. The answer to the question the
Court has elected to take up—whether a mixed-motives jury
instruction is ever proper in an ADEA case—is plainly
yes. III Although the Court
declines to address the question we granted certiorari to decide, I
would answer that question by following our unanimous opinion in Desert Palace, Inc. v. Costa , 539 U. S. 90 (2003). I would
accordingly hold that a plaintiff need not present direct evidence
of age discrimination to obtain a mixed-motives
instruction. The source of the
direct-evidence debate is Justice O’Connor’s opinion concurring in
the judgment in Price Waterhouse . Writing only for
herself, Justice O’Connor argued that a plaintiff should be
required to introduce “direct evidence” that her sex motivated the
decision before the plurality’s mixed-motives framework would
apply. 490 U. S., at 276.[ Footnote
7 ] Many courts have treated Justice O’Connor’s opinion in Price Waterhouse as controlling for both Title VII and
ADEA mixed-motives cases in light of our statement in Marks v. United States , 430 U. S. 188 , 193
(1977), that “[w]hen a fragmented Court decides a case and no
single rationale explaining the result enjoys the assent of five
Justices, ‘the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the
narrowest grounds.’ ” Unlike the cases Marks addressed, however, Price Waterhouse garnered five votes
for a single rationale: Justice White agreed with the plurality as
to the motivating-factor test, see supra , at 3, n. 3; he
disagreed only as to the type of evidence an employer was required
to submit to prove that the same result would have occurred absent
the unlawful motivation. Taking the plurality to demand objective
evidence, he wrote separately to express his view that an
employer’s credible testimony could suffice. 490 U. S., at 261.
Because Justice White provided a fifth vote for the “rationale
explaining the result” of the Price Waterhouse decision, Marks , 430 U. S., at 193, his concurrence is properly
understood as controlling, and he, like the plurality, did not
require the introduction of direct evidence. Any questions raised by Price
Waterhouse as to a direct evidence requirement were settled by
this Court’s unanimous decision in Desert Palace , in which
we held that a plaintiff need not introduce direct evidence to meet
her burden in a mixed-motives case under Title VII, as amended by
the Civil Rights Act of 1991. In construing the language of
§2000e–2(m), we reasoned that the statute did not mention, much
less require, a heightened showing through direct evidence and that
“Congress has been unequivocal when imposing heightened proof
requirements.” 539 U. S., at 99. The statute’s silence with respect
to direct evidence, we held, meant that “we should not depart from
the ‘[c]onventional rul[e] of civil litigation … [that] requires a
plaintiff to prove his case by a preponderance of the evidence’, …
using ‘direct or circumstantial evidence.’ ” Ibid. (quoting Price Waterhouse , 490 U. S., at 253 (plurality
opinion), and Postal Service Bd. of Governors v. Aikens , 460
U. S. 711 (1983)). We also recognized the Court’s consistent
acknowledgment of the utility of circumstantial evidence in
discrimination cases. Our analysis in Desert
Palace applies with equal force to the ADEA. Cf. ante , at 9–10, n. 4. As with the 1991 amendments to
Title VII, no language in the ADEA imposes a heightened direct
evidence requirement, and we have specifically recognized the
utility of circumstantial evidence in ADEA cases. See Reeves , 530 U. S., at 147 (cited by Desert
Palace , 539 U. S., at 99–100). Moreover, in Hazen Paper
Co. , we held that an award of liquidated damages for a
“willful” violation of the ADEA did not require proof of the
employer’s motivation through direct evidence, 507 U. S., at 615,
and we have similarly rejected the imposition of special
evidentiary rules in other ADEA cases. See, e.g. , Swierkiewicz v. Sorema N. A. , 534 U. S. 506 (2002); O’Connor v. Consolidated Coin Caterers Corp. , 517 U. S. 308 (1996). Desert Palace thus confirms the answer provided by
the plurality and Justice White in Price Waterhouse: An
ADEA plaintiff need not present direct evidence of discrimination
to obtain a mixed-motives instruction. IV The Court’s
endorsement of a different construction of the same critical
language in the ADEA and Title VII is both unwise and inconsistent
with settled law. The but-for standard the Court adopts was
rejected by this Court in Price Waterhouse and by Congress
in the Civil Rights Act of 1991. Yet today the Court resurrects the
standard in an unabashed display of judicial lawmaking. I
respectfully dissent. Footnote 1 “The question presented by the
petitioner in this case is whether a plaintiff must present direct
evidence of age discrimination in order to obtain a mixed-motives
jury instruction in a suit brought under the [ADEA].” Ante , at 1. Footnote 2 The United States filed an amicus curiae brief supporting petitioner on the question
presented. At oral argument, the Government urged that the Court
should not reach the issue it takes up today. See Tr. of Oral Arg.
20–21, 28–29. Footnote 3 Although Justice White stated
that the plaintiff had to show that her sex was a “substantial”
factor, while the plurality used the term “motivating” factor,
these standards are interchangeable, as evidenced by Justice
White’s quotation of Mt. Healthy City Bd. of Ed. v. Doyle , 429
U. S. 274 , 287 (1977): “ ‘[T]he burden was properly placed
upon [the plaintiff to show that the illegitimate criterion] was a
“substantial factor”—or, to put it in other words , that it
was a “motivating factor” ’ ” in the adverse decision. Price Waterhouse , 490 U. S., at 259 (emphasis added); see
also id. , at 249 (plurality opinion) (using “substantial”
and “motivating” interchangeably). Footnote 4 We were no doubt aware that
dictionaries define “because of” as “by reason of” or “on account
of.” Ante , at 7–8. Contrary to the majority’s bald
assertion, however, this does not establish that the term denotes
but-for causation. The dictionaries the Court cites do not, for
instance, define “because of” as “ solely by reason of” or
“ exclusively on account of.” In Price Waterhouse ,
we recognized that the words “because of” do not mean
“ solely because of,” and we held that the inquiry
“commanded by the words” of the statute was whether gender was a
motivating factor in the employment decision. 490 U. S., at 241
(plurality opinion). Footnote 5 See Febres v. Challenger Caribbean Corp ., 214 F. 3d 57 (CA1 2000); Ostrowski v. Atlantic Mut. Ins. Cos. , 968
F. 2d 171 (CA2 1992); Starceski v. Westinghouse
Elec. Corp. , 54 F. 3d 1089 (CA3 1995); EEOC v. Warfield-Rohr Casket Co ., 364 F. 3d 160 (CA4 2004); Rachid v. Jack In The Box, Inc ., 376 F. 3d
305 (CA5 2004); Wexler v. White’s Fine Furniture,
Inc. , 317 F. 3d 564 (CA6 2003); Visser v. Packer Eng. Assocs., Inc. , 924 F. 2d 655 (CA7 1991)
(en banc); Hutson v. McDonnell Douglas Corp. , 63
F. 3d 771 (CA8 1995); Lewis v. YMCA , 208
F. 3d 1303 (CA11 2000) (per curiam); see also Gonzagowski v. Widnall , 115 F. 3d 744, 749
(CA10 1997). Footnote 6 There is, however, some evidence
that Congress intended the 1991 mixed-motives amendments to apply
to the ADEA as well. See H. R. Rep., pt. 2, at 4 (noting
that a “number of other laws banning discrimination, including …
the Age Discrimination in Employment Act (ADEA), 29 U. S. C.
§621, et seq., are modeled after and have been interpreted in a
manner consistent with Title VII,” and that “these other laws
modeled after Title VII [should] be interpreted consistently in a
manner consistent with Title VII as amended by this Act,” including
the mixed-motives provisions). Footnote 7 While Justice O’Connor did not
define precisely what she meant by “direct evidence,” we contrasted
such evidence with circumstantial evidence in Desert Palace,
Inc. v. Costa , 539 U. S. 90 (2003). That Justice
O’Connor might have intended a different definition does not affect
my conclusion, as I do not believe a plaintiff is required to
introduce any special type of evidence to obtain a mixed-motives
instruction. BREYER, J., DISSENTING GROSS V. FBL FINANCIAL SERVICES, INC. 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-441 JACK GROSS, PETITIONER v. FBL FINANCIAL
SERVICES, INC.

															on writ of certiorari to the united states court of
appeals for the eighth circuit

															[June 18, 2009]

															   Justice Breyer, with whom Justice
Souter and Justice Ginsburg join, dissenting.

															   I agree with Justice Stevens that
mixed-motive instructions are appropriate in the Age Discrimination
in Employment Act context. And I join his opinion. The Court
rejects this conclusion on the ground that the words “because of”
require a plaintiff to prove that age was the “but-for” cause of
his employer’s adverse employment action. Ante , at 7. But
the majority does not explain why this is so. The words “because
of” do not inherently require a showing of “but-for” causation, and
I see no reason to read them to require such a showing.

															   It is one thing to require a typical tort
plaintiff to show “but-for” causation. In that context, reasonably
objective scientific or commonsense theories of physical causation
make the concept of “but-for” causation comparatively easy to
understand and relatively easy to apply. But it is an entirely
different matter to determine a “but-for” relation when we
consider, not physical forces, but the mind-related
characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more
often we ascribe motives, after an event, to an individual
in light of the individual’s thoughts and other circumstances
present at the time of decision. In a case where we characterize an
employer’s actions as having been taken out of multiple motives,
say, both because the employee was old and because he wore loud
clothing, 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. The
answer to this hypothetical inquiry will often be far from obvious,
and, since the employee likely knows less than does the employer
about what the employer was thinking at the time, the employer will
often be in a stronger position than the employee to provide the
answer.

															   All that a plaintiff can know for certain in
such a context is that the forbidden motive did play a role in the
employer’s decision. And the fact that a jury has found that age
did play a role in the decision justifies the use of the word
“because,” i.e ., the employer dismissed the employee
because of his age (and other things). See Price
Waterhouse v. Hopkins , 490 U. S. 228 , 239–242
(1989) (plurality opinion). I therefore would see nothing wrong in
concluding that the plaintiff has established a violation of the
statute.

															   But the law need not automatically assess
liability in these circumstances. In Price Waterhouse , the
plurality recognized an affirmative defense where the defendant
could show that the employee would have been dismissed regardless.
The law permits the employer this defense, not because the
forbidden motive, age, had no role in the actual decision,
but because the employer can show that he would have dismissed the
employee anyway in the hypothetical circumstance in which
his age-related motive was absent. And it makes sense that this
would be an affirmative defense, rather than part of the showing of
a violation, precisely because the defendant is in a better
position than the plaintiff to establish how he would have acted in
this hypothetical situation. See id. , at 242; cf. ante , at 6 (Stevens, J., dissenting) (describing the Title
VII framework). I can see nothing unfair or impractical about
allocating the burdens of proof in this way.

															   The instruction that the District Court gave
seems appropriate and lawful. It says, in pertinent part:

															   “Your verdict must be for
plaintiff if all the following elements have been proved by the
preponderance of the evidence:

															.     .     .     .     .

															“[The] plaintiff’s age was a motivating factor in defendant’s
decision to demote plaintiff.

															   “However, your verdict must be for defendant …
if it has been proved by the preponderance of the evidence that
defendant would have demoted plaintiff regardless of his age.

															.     .     .     .     .

															   “As used in these instructions, plaintiff’s
age was ‘a motivating factor,’ if plaintiff’s age played a part or
a role in the defendant’s decision to demote plaintiff. However,
plaintiff’s age need not have been the only reason for defendant’s
decision to demote plaintiff.” App. 9–10.

															   For these reasons as well as for
those set forth by Justice Stevens, I respectfully dissent.