NOTICE: This opinion is subject to
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–882

															_________________

															NORIS BABB, PETITIONER v. ROBERT
WILKIE, SECRETARY OF VETERANS AFFAIRS

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

															[April 6, 2020]

															Justice Alito delivered the opinion of the
Court.[ 1 ]*

															The federal-sector provision of the Age
Discrimination in Employment Act of 1967 (ADEA), 88Stat. 74, 29
U. S. C. §633a(a), provides (with just a few exceptions)
that “personnel actions” affecting individuals aged 40 and older
“shall be made free from any discrimination based on age.” We are
asked to decide whether this provision imposes liability only when
age is a “but-for cause” of the personnel action in question.

															We hold that §633a(a) goes further than that.
The plain meaning of the critical statutory language (“made free
from any discrimination based on age”) demands that personnel
actions be untainted by any consideration of age. This does not
mean that a plaintiff may obtain all forms of relief that are
generally available for a violation of §633a(a), including hiring,
reinstatement, backpay, and compensatory damages, without showing
that a personnel action would have been different if age had not
been taken into account. To obtain such relief, a plaintiff must
show that age was a but-for cause of the challenged employment
decision. But if age discrimination played a lesser part in the
decision, other remedies may be appropriate.

															I

															Noris Babb, who was born in 1960, is a
clinical pharmacist at the U. S. Department of Veterans
Affairs Medical Center in Bay Pines, Florida. Babb brought suit in
2014 against the Secretary of Veterans Affairs (hereinafter VA),
claiming that she had been subjected to age and sex discrimination,
as well as retaliation for engaging in activities protected by
federal anti-discrimination law. Only her age-discrimination claims
are now before us.

															Those claims center on the following personnel
actions. First, in 2013, the VA took away Babb’s “advanced scope”
designation, which had made her eligible for promotion on the
Federal Government’s General Scale from a GS–12 to a
GS–13.[ 2 ] Second, during this
same time period, she was denied training opportunities and was
passed over for positions in the hospital’s anticoagulation clinic.
Third, in 2014, she was placed in a new position, and while her
grade was raised to GS–13, her holiday pay was reduced. All these
actions, she maintains, involved age discrimination, and in support
of her claims, she alleges, among other things, that supervisors
made a variety of age-related comments.

															The VA moved for summary judgment and offered
non-discriminatory reasons for the challenged actions, and the
District Court granted that motion. Evaluating each of Babb’s
claims under the burden-shifting framework outlined in McDonnell
Douglas Corp. v. Green , 411 U.S.
792 (1973), the court found that Babb had established a prima
facie case, that the Secretary had proffered legitimate reasons for
the challenged actions, and that no jury could reasonably conclude
that those reasons were pretextual.

															Babb appealed, contending that the District
Court should not have used the McDonnell Douglas framework
because it is not suited for “mixed motives” claims. She argued
that under the terms of the ADEA’s federal-sector provision, a
personnel action is unlawful if age is a factor in the challenged
decision. As a result, she explained that even if the VA’s
proffered reasons were not pretextual, it would not necessarily
follow that age discrimination played no part.

															The Eleventh Circuit panel that heard Babb’s
appeal found that her argument was “foreclosed” by Circuit
precedent but added that it might have agreed with her if it were
“writing on a clean slate.” Babb v. Secretary , Dept. of Veterans Affairs , 743 Fed. Appx. 280, 287 (2018)
(citing Trask v. Secretary , Dept. of Veterans
Affairs , 822 F.3d 1179 (CA11 2016)).

															We granted certiorari, 588 U. S. ___
(2019), to resolve a Circuit split over the interpretation of
§633a(a).

															II

															That provision of the ADEA states in relevant
part: “All personnel actions affecting employees or applicants for
employment who are at least 40 years of age . . . shall
be made free from any discrimination based on age.” 29
U. S. C. §633a(a).

															The Government interprets this provision to
impose liability only when age is a but-for cause of an employment
decision. According to the Government, even if age played a part in
such a decision, an employee or applicant for employment cannot
obtain any relief unless it is shown that the decision would have
been favorable if age had not been taken into account. This
interpretation, the Government contends, follows both from the
meaning of the statutory text and from the “default rule” that we
have recognized in other employment discrimination cases, namely,
that recovery for wrongful conduct is generally permitted only if
the injury would not have occurred but for that conduct. See, e.g. , University of Tex. Southwestern Medical Center v. Nassar , 570 U.S.
338 , 346–347 (2013).

															Babb interprets the provision differently. She
maintains that its language prohibits any adverse consideration of
age in the decision-making process. Accordingly, she argues
proof that age was a but-for cause of a challenged employment
decision is not needed.

															A

															Which interpretation is correct? To decide, we
start with the text of the statute, see Gross v. FBL
Financial Services , Inc. , 557
U.S. 167 , 175 (2009), and as it turns out, it is not necessary
to go any further. The plain meaning of the statutory text shows
that age need not be a but-for cause of an employment decision in
order for there to be a violation of §633a(a). To explain the basis
for our interpretation, we will first define the important terms in
the statute and then consider how they relate to each other.

															1

															Section 633a(a) concerns “personnel actions,”
and while the ADEA does not define this term, its meaning is easy
to understand. The Civil Service Reform Act of 1978, which governs
federal employment, broadly defines a “personnel action” to include
most employment-related decisions, such as appointment, promotion,
work assignment, compensation, and performance reviews. See 5
U. S. C. §2302(a)(2)(A). That interpretation is
consistent with the term’s meaning in general usage, and we assume
that it has the same meaning under the ADEA.

															Under §633a(a), personnel actions must be made
“free from” discrimination. The phrase “free from” means
“untainted” or “[c]lear of (something which is regarded as
objectionable).” Webster’s Third New International Dictionary 905
(def. 4(a)(2)) (1976); 4 Oxford English Dictionary 521 (def. 12)
(1933); see also American Heritage Dictionary 524 (def. 5(a))
(1969) (defining “free” “used with from” as “[n]ot affected or
restricted by a given condition or circumstance”); Random House
Dictionary of the English Language 565 (def. 12) (1966) (defining
“free” as “exempt or released from something specified that
controls, restrains, burdens, etc.”). Thus, under §633a(a), a
personnel action must be made “untainted” by discrimination based
on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home.[ 3 ] And as for “discrimination,” we assume
that it carries its “ ‘normal definition,’ ” which is
“ ‘differential treatment.’ ” Jackson v. Birm-
ingham Bd. of Ed. , 544 U.S.
167 , 174 (2005).

															Under §633a(a), the type of discrimination
forbidden is “discrimination based on age,” and “[i]n common talk,
the phrase ‘based on’ indicates a but-for causal relationship.” Safeco Ins. Co. of America v. Burr , 551 U.S.
47 , 63 (2007); cf. Comcast Corp. v. National Assn. of
African American-Owned Media , ante , at 6. Therefore,
§633a(a) requires that age be a but-for cause of the discrimination
alleged.

															What remains is the phrase “shall be made.”
“[S]hall be made” is a form of the verb “to make,” which means “to
bring into existence,” “to produce,” “to render,” and “to cause to
be or become.” Random House Dictionary of the English Language, at
866. Thus, “shall be made” means “shall be produced,” etc. And the
imperative mood, denoting a duty, see Black’s Law Dictionary 1233
(5th ed. 1979), emphasizes the importance of avoiding the
taint.

															2

															So much for the individual terms used in
§633a(a). What really matters for present purposes is the way these
terms relate to each other. Two matters of syntax are critical.
First, “based on age” is an adjectival phrase that modifies the
noun “discrimination.” It does not modify “personnel actions.” The
statute does not say that “it is unlawful to take personnel actions
that are based on age”; it says that “personnel actions
. . . shall be made free from any discrimination based on
age.” §633a(a). As a result, age must be a but-for cause of
discrimination—that is, of differential treatment—but not
necessarily a but-for cause of a personnel action itself.

															Second, “free from any discrimination” is an
adverbial phrase that modifies the verb “made.” Ibid . Thus,
“free from any discrimination” describes how a personnel action
must be “made,” namely, in a way that is not tainted by
differential treatment based on age. If age discrimination plays
any part in the way a decision is made, then the decision is not
made in a way that is untainted by such discrimination.

															This is the straightforward meaning of the terms
of §633a(a), and it indicates that the statute does not require
proof that an employment decision would have turned out differently
if age had not been taken into account.

															To see what this entails in practice, consider a
simple example. Suppose that a decision-maker is trying to decide
whether to promote employee A, who is 35 years old, or employee B,
who is 55. Under the employer’s policy, candidates for promotion
are first given numerical scores based on non-discriminatory
factors. Candidates over the age of 40 are then docked five points,
and the employee with the highest score is promoted. Based on the
non-discriminatory factors, employee A (the 35-year-old) is given a
score of 90, and employee B (the 55-year-old) gets a score of 85.
But employee B is then docked 5 points because of age and thus ends
up with a final score of 80. The decision-maker looks at the
candidates’ final scores and, seeing that employee A has the higher
score, promotes employee A.

															This decision is not “made” “free from any
discrimination” because employee B was treated differently (and
less favorably) than employee A (because she was docked five points
and A was not). And this discrimination was “based on age” because
the five points would not have been taken away were it not for
employee B’s age.

															It is true that this difference in treatment did
not affect the outcome, and therefore age was not a but-for cause
of the decision to promote employee A. Employee A would have won
out even if age had not been considered and employee B had not lost
five points, since A’s score of 90 was higher than B’s initial,
legitimate score of 85. But under the language of §633a(a), this
does not preclude liability.

															The Government has no answer to this parsing of
the statutory text. It makes two correct points: first, that
“ ‘discrimination based on age’ ” “requires but-for
causation,” and, second, that “ ‘discrimination’ ” means
“ ‘ “differential treatment.” ’ ” Brief for
Respondent 16–17. But based on these two points, the Government
draws the unwarranted conclusion that “[i]t is thus not enough for
a federal employer merely to consider age . . . if
that consideration does not actually cause the employer to make a
less favorable personnel action than it would have made for a
similarly situated person who is younger.” Id. , at 17. That
conclusion does not follow from the two correct points on which it
claims to be based. What follows instead is that, under §633a(a),
age must be the but-for cause of differential treatment , not
that age must be a but-for cause of the ultimate
decision .[ 4 ]

															B

															The Government’s primary argument rests not on
the text of §633a(a) but on prior cases interpreting different
statutes. But contrary to the Government’s argument, nothing in
these past decisions undermines our interpretation of §633a(a).

															1. In Safeco Ins. Co. of America v. Burr , 551 U. S., at 63, we interpreted a provision of
the Fair Credit Reporting Act (FCRA) requiring that notice be
provided “[i]f any person takes any adverse action with
respect to any consumer that is based in whole or in part on any information contained in a consumer [credit] report. ”
15 U. S. C. §1681m(a) (emphasis added). This language is
quite different from that of 29 U. S. C. §633a(a).

															In §1681m(a), the phrase “based . . .
on any information contained in a consumer [credit] report”
modifies “adverse action,” and thus the information in question
must be a but-for cause of the adverse action. By contrast, in
§633a(a), “based on” does not modify “personnel actions”; it
modifies “discrimination,” i.e. , differential treatment
based on age.

															The Government tries to find support in Safeco ’s discussion of FCRA’s reference to an adverse action
that is “based . . . in part ” on a credit report.
15 U. S. C. §1681m(a) (emphasis added). The Safeco Court observed that the phrase “in part” could be read to mean that
notice had to be given “whenever the report was considered in the
rate-setting process,” but it rejected this reading. 551
U. S., at 63. The Government suggests that the Court reached
this conclusion because it thought that Congress would have “said
so expressly” if it had meant to require notice in situations where
consideration of a credit report was inconsequential. Brief for
Respondent 19. Accordingly, the Government argues, because §633a(a)
does not say expressly that consideration of age is unlawful, we
should conclude that mere consideration is insufficient to trigger
liability. See id ., at 19–20.

															This argument fails for two reasons. First, as
explained above, the language of §633a(a) does expressly
impose liability if age discrimination plays a part in a federal
employment decision. Second, Safeco did not invoke the sort
of super-plain-statement rule that the Government now attributes to
it. Instead, the Safeco Court rejected the argument on other
grounds, including its assessment of the particular statutory
scheme at issue. See 551 U. S., at 63–64. That reasoning
obviously has no application here.

															2. In Gross v. FBL Financial
Services , Inc. , 557 U.S.
167 , we interpreted the private-sector provision of the ADEA,
29 U. S. C. §623(a)(1), and held that it requires a
plaintiff to prove that “age was the ‘but-for’ cause of the
employer’s adverse action.” 557 U. S., at 177. But as we
previously recognized, the ADEA’s private- and public-sector
provisions are “couched in very different terms.” Gómez-Pérez v. Potter , 553 U.S.
474 , 488 (2008).

															Section 623(a)(1) makes it “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.” Thus, the but-for
causal language in §623(a)(1)––“because of such individual’s
age”––is an adverbial phrase modifying the verbs (“to fail or
refuse to hire,” etc.) that specify the conduct that the provision
regulates. For this reason, the syntax of §623(a)(1) is critically
different from that of §633a(a), where, as noted, the but-for
language modifies the noun “discrimination.” This is important
because all the verbs in §623(a)(1)—failing or refusing to hire,
discharging, or otherwise discriminating with respect to
“compensation, terms, conditions, or privileges of
employment”—refer to end results.[ 5 ] By contrast, the provision in our case, §633a(a),
prohibits any age discrimination in the “mak[ing]” of a personnel
decision, not just with respect to end results.

															3. Finally, in University of Tex.
Southwestern Medical Center v. Nassar , 570 U.S.
338 , we interpreted Title VII’s anti-retaliation provision, 42
U. S. C. §2000e–3(a), as requiring retaliation to be a
but-for cause of the end result of the employment decision. The
Court saw no “meaningful textual difference between the text [of
that provision] and the one in Gross ,” 570 U. S., at
352, and the Court found support for its interpretation in the rule
that recovery for an intentional tort generally requires proof
“ ‘that the harm would not have occurred’ in the absence
of—that is, but for—the defendant’s conduct.” 570 U. S., at
346–347 (quoting Restatement of Torts §431, Comment a , pp.
1159–1160 (1934)).

															That reasoning has no application in the present
case. The wording of §633a(a)––which refers expressly to the
“mak[ing]” of personnel actions in a way that is “free from any
discrimination based on age”––is markedly different from the
language of the statutes at issue in Gross and Nassar , and the traditional rule favoring but-for causation
does not dictate a contrary result. Section 633a(a) requires proof
of but-for causation, but the object of that causation is
“discrimination,” i.e. , differential treatment, not the
personnel action itself.

															For these reasons, Safeco , Gross ,
and Nassar are entirely consistent with our holding in this
case.

															C

															We are not persuaded by the argument that it
is anomalous to hold the Federal Government to a stricter standard
than private employers or state and local governments. That is what
the statutory language dictates, and if Congress had wanted to
impose the same standard on all employers, it could have easily
done so.

															As first enacted, the ADEA “applied only to
actions against private employers.” Lehman v. Nakshian , 453 U.S.
156 , 166 (1981). In 1974, “Congress expanded the scope of the
ADEA” to reach both state and local governments and the Federal
Government. Ibid. To cover state and local governments,
Congress simply added them to the definition of an “employer” in
the ADEA’s private-sector provision, see 29 U. S. C.
§630(b), and Congress could have easily done the same for the
Federal Government. Indeed, the first proposal for expansion of the
ADEA to government entities did precisely that. Lehman , 453
U. S., at 166, n. 14.

															But Congress did not choose this route. Instead,
it “deliberately prescribed a distinct statutory scheme applicable
only to the federal sector,” id. , at 166, and in doing so,
it eschewed the language used in the private-sector provision,
§623(a). See Gómez-Pérez , 553 U. S., at 488. We
generally ascribe significance to such a decision. See Russello v. United States , 464 U.S.
16 , 23 (1983) (“ ‘[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion’ ”).

															That Congress would want to hold the Federal
Government to a higher standard than state and private employers is
not unusual. See Supp. Letter Brief for Respond- ent 1 (“The
federal government has long adhered to anti- discrimination
policies that are more expansive than those required by
. . . the ADEA”); e.g. , Exec. Order No. 11478, §1,
3 CFR 446 (1969) (“It is the policy of the Government of the United
States to provide equal opportunity in Federal employment for all
persons, to prohibit discrimination in employment . . .
and to promote the full realization of equal employment opportunity
through a continuing affirmative program”); Exec. Order No. 12106,
§1–102, 3 CFR 263 (1978) (amending Exec. Order No. 11478 to cover
discrimination on the basis of age). And several years after adding
§633a(a) to the ADEA, Congress amended the civil service laws to
prescribe similar standards. See 5 U. S. C. §2301(b)(2)
(“Federal personnel management should be implemented consistent
with the . . . merit system principl[e that a]ll
employees and applicants for employment should receive fair and
equitable treatment in all aspects of personnel management without
regard to . . . age”).

															In any event, “where, as here, the words of [a]
statute are unambiguous, the ‘ “judicial inquiry is
complete.” ’ ” Desert Palace , Inc. v. Costa , 539 U.S.
90 , 98 (2003) (quoting Connecticut Nat. Bank v. Germain , 503 U.S.
249 , 254 (1992)).

															D

															While Babb can establish that the VA violated
§633a(a) without proving that age was a but-for cause of the VA’s
personnel actions, she acknowledges—and we agree—that but-for
causation is important in determining the appropriate remedy. It is
bedrock law that “requested relief ” must “redress the alleged
injury.” Steel Co. v. Citizens for Better
Environment , 523 U.S.
83 , 103 (1998). Thus, §633a(a) plaintiffs who demonstrate only
that they were subjected to unequal consideration cannot obtain
reinstatement, backpay, compensatory damages, or other forms of
relief related to the end result of an employment decision. To
obtain such remedies, these plaintiffs must show that age
discrimination was a but-for cause of the employment outcome.

															We have long employed these basic principles. In Texas v. Lesage , 528 U.S.
18 , 21–22 (1999) ( per curiam ), we applied this rule to a
plaintiff who sought recovery under Rev. Stat. §1979, 42
U. S. C. §1983, for an alleged violation of the Equal
Protection Clause. We explained: “[W]here a plaintiff challenges a
discrete governmental decision as being based on an impermissible
criterion and it is undisputed that the government would have made
the same decision regardless, there is no cognizable injury
warranting [damages] relief.” 528 U. S., at 21. Cf. Mt.
Healthy City Bd. of Ed. v. Doyle , 429 U.S.
274 , 285 (1977) (rejecting rule that “would require
reinstatement . . . even if the same decision would have
been reached had the incident not occurred”).

															Our conclusion is also supported by traditional
principles of tort and remedies law. “Remedies generally seek to
place the victim of a legal wrong . . . in the position
that person would have occupied if the wrong had not occurred.” R.
Weaver, E. Shoben, & M. Kelly, Principles of Remedies Law 5 (3d
ed. 2017). Thus, “[a]n actor’s liability is limited to those harms
that result from the risks that made the actor’s conduct tortious.”
Restatement (Third) of Torts §29, p. 493 (2005). Remedies
should not put a plaintiff in a more favorable position than he or
she would have enjoyed absent discrimination. But this is precisely
what would happen if individuals who cannot show that
discrimination was a but-for cause of the end result of a personnel
action could receive relief that alters or compensates for the end
result.

															Although unable to obtain such relief,
plaintiffs are not without a remedy if they show that age was a
but-for cause of differential treatment in an employment decision
but not a but-for cause of the decision itself. In that situation,
plaintiffs can seek injunctive or other forward-looking relief.
Determining what relief, if any, is appropriate in the present case
is a matter for the District Court to decide in the first instance
if Babb succeeds in showing that §633a(a) was violated.

															*  *  *

															The judgment of the United States Court of
Appeals for the Eleventh Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.

															It is so ordered. Notes 1 *Justice Ginsburg joins all but
footnote 3 of this opinion. 2 The General Schedule (GS)
is a federal pay scale that is divided into 15 numbered grades. See
5 U. S. C. §5104. “[A]s the number of the grade
increases, so do pay and responsibilities.” United States v. Clark , 454 U.S.
555 , 557 (1982). 3 We have repeatedly
explained that “ ‘the word “any” has an expansive
meaning.’ ” Ali v. Federal Bureau of Prisons , 552 U.S.
214 , 219 (2008) (quoting United States v. Gonzales , 520 U.S.
1 , 5 (1997)). The standard dictionary definition of “any” is
“[s]ome, regardless of quantity or number.” American Heritage
Dictionary 59 (def. 2) (1969). 4 Beyond this, the
Government’s only other textual argument is that the term “made”
refers to a particular moment in time, i.e. , the moment when
the final employment decision is made. We agree, but this does not
mean that age must be a but-for cause of the ultimate outcome. If,
at the time when the decision is actually made, age plays a part,
then the decision is not made “free from” age discrimination. It is
not clear that Babb actually disagrees with the Government on this
point, although the many references in her brief to the
decision-making process could be read to mean that §633a(a) can be
violated even if age played no part whatsoever when the actual
decision was made. If that is what Babb wants to suggest, however,
we must disagree. It is entirely natural to regard an employment
decision as being “made” at the time when the outcome is actually
determined and not during events leading up to that decision. See
American Heritage Dictionary, at 788 (def. 10) (defining “make” as
“[t]o arrive at” a particular conclusion, i.e. , to “make
a decision ”). And holding that §633a(a) is violated when the
consideration of age plays no role in the final decision would have
startling implications. Consider this example: A decision-maker
must decide whether to promote employee A, who is under 40, or
employee B, who is over 40. A subordinate recommends employee A and
says that the recommendation is based in part on employee B’s age.
The decision-maker rebukes this subordinate for taking age into
account, disregards the recommendation, and makes the decision
independently. Under an interpretation that read “made” expansively
to encompass a broader personnel process, §633a(a) would be
violated even though age played no role whatsoever in the ultimate
decision. Indeed, there might be a violation even if the
decision-maker decided to promote employee B. We are aware of no
other anti-discrimination statute that imposes liability under such
circumstances, and we do not think that §633a(a) should be
understood as the first. 5 Moreover, even if
“discriminating with respect to compensation, terms, conditions, or
privileges of employment” could be read more broadly to encompass
things that occur before a final decision is made, the ejusdem
generis canon would counsel a court to read that final phrase
to refer––like the prior terms––to the final decision. See Christopher v. SmithKline Beecham Corp. , 567 U.S.
142 , 163, and n. 19 (2012). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–882

															_________________

															NORIS BABB, PETITIONER v. ROBERT
WILKIE, SECRETARY OF VETERANS AFFAIRS

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

															[April 6, 2020]

															Justice Sotomayor, with whom Justice Ginsburg
joins, concurring.

															I join the majority opinion because I agree that
29 U. S. C. §633a imposes liability even when age is not
a “ ‘but-for cause’ ” of a personnel action. Ante ,
at 1. I write separately to make two observations.

															First, the Court does not foreclose §633a claims
arising from discriminatory processes. Cf. Comcast Corp. v. National Assn. of African American-Owned Media , ante ,
p. ___ (Ginsburg, J., concurring in part and concurring
in judgment). If, for example, an employer hires a 50-year-old
person who passed a computer-aptitude test administered only to
applicants above 40, clearly a question could arise as to whether
the hiring decision was “made free from” differential
treatment.

															Second, this same example may suggest that §633a
permits damages remedies, even when the Government engages in
nondispositive “age discrimination in the ‘ma[king]’ of a personnel
decision.” Ante , at 10. If an applicant incurs costs to
prepare for the discriminatorily administered aptitude test, a
damages award compensating for such out-of-pocket expenses could
restore the applicant to the “position tha[t] he or she would have
enjoyed absent discrimination.” Ante , at 14. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–882

															_________________

															NORIS BABB, PETITIONER v. ROBERT
WILKIE, SECRETARY OF VETERANS AFFAIRS

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

															[April 6, 2020]

															Justice Thomas, dissenting.

															Until now, the rule for pleading a claim under a
federal antidiscrimination statute was clear: A plaintiff had to
plausibly allege that discrimination was the but-for cause of an
adverse action, unless the statute’s text unequivocally replaced
that standard with a different one. Today, however, the Court
departs from this rule, concluding that the federal-sector
provision of the Age Discrimination in Employment Act of 1967
(ADEA) imposes liability if an agency’s personnel actions are at
all tainted by considerations of age. See ante , at 1. This
rule is so broad that a plaintiff could bring a cause of action
even if he is ultimately promoted or hired over a younger
applicant. This novel “any consideration” standard does serious
damage to our interpretation of antidiscrimination statutes and
disrupts the settled expectations of federal employers and
employees. I therefore respectfully dissent.

															I

															A

															In my view, the default rule of but-for
causation applies here because it is not clearly displaced by the
text of the ADEA’s federal-sector provision. Though the Court
engages at length with the provision’s text, it barely acknowledges
our default rule, which undergirds our antidiscrimination
jurisprudence. Because the interpretation of an antidiscrimination
statute must be assessed against the backdrop of this default rule,
I begin by describing the rule in detail.

															We have explained that “[c]ausation 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,” including claims of discrimination. University of
Tex. Southwestern Medical Center v. Nassar , 570
U.S. 338 , 346 (2013) (quoting various provisions of the
Restatement of Torts (1934)). “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.” Id. , at 346–347 (internal quotation marks
omitted). But-for causation is “the background against which
Congress legislate[s],” and it is “the default rul[e Congress] is
presumed to have incorporated, absent an indication to the contrary
in the statute itself.” Id. , at 347 (citing W. Keeton, D.
Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts
265 (5th ed. 1984)). We have recognized as much when interpreting
42 U. S. C. §1981’s prohibition against racial
discrimination in contracting, Comcast Corp. v. National
Assn. of African American-Owned Media , ante , p. ___,
Title VII’s retaliation provision, Nassar , 570 U.S.
338 , and the private-sector provision of the ADEA, Gross v. FBL Financial Services , Inc. , 557 U.S.
167 (2009).

															Given this established backdrop, the question
becomes whether the federal-sector provision of the ADEA contains
sufficiently clear language to overcome the default rule. The
provision states: “All personnel actions affecting employees or
applicants for employment who are at least 40 years of age
. . . shall be made free from any discrimination based on
age.” 29 U. S. C. §633a(a).

															I agree with the Court that discrimination means
differential treatment, that “based on” connotes a but-for
relationship, and that “to make” typically means to produce or to
become. Ante , at 5. But I disagree with the Court’s overall
interpretation of how these terms fit together. Specifically, the
Court believes that “ ‘based on age’ ” modifies only
“ ‘discrimination,’ ” not “ ‘personnel
actions.’ ” Ante , at 6. From this, the Court concludes
that the plain meaning of the text “demands that personnel actions
be untainted by any consideration of age.” Ante , at 1.

															In my view, however, the provision is also
susceptible of the Government’s interpretation, i.e., that
the entire phrase “discrimination based on age” modifies “personnel
actions.” Under this reading, as the Government explains, the
provision “prohibits agencies from engaging in ‘discrimination based on age’ in the making of personnel actions.” Brief for
Respondent 16. Because the only thing being “made” in the statute
is a “personnel action,” it is entirely reasonable to conclude that
age must be the but-for cause of that personnel action.

															At most, the substantive mandate against
discrimination in §633a(a) is ambiguous. And it goes without saying
that an ambiguous provision does not contain the clear language
necessary to displace the default rule. Accordingly, I would hold
that the default rule of but-for causation applies here.

															B

															The Court attempts to downplay the sweeping
nature of its novel “any consideration” rule by discussing the
limited remedies available under that rule. Specifically, the Court
declares that a plaintiff can obtain compensatory damages, backpay,
and reinstatement only if he proves that age was a but-for cause of
an adverse personnel action. Otherwise, he can obtain only
injunctive or prospective relief. See ante , at 13–14.

															If the text of the ADEA contained this remedial
scheme, it would support the Court’s conclusion regarding
causation. But the Court does not cite any remedial statutory
provision. Nor can it, as one does not exist. The Court also fails
to cite any authority suggesting that its remedial scheme existed,
at common law or otherwise, in 1974 when Congress added the
federal-sector provision to the ADEA. §28(b)(2), 88Stat. 74–75.

															Instead, the Court principally relies on Texas v. Lesage , 528 U.S.
18 (1999) ( per curiam ), which applied Mt.
Healthy City Bd. of Ed. v. Doyle , 429 U.S.
274 (1977). See Lesage , 528 U. S., at 20–22. But Mt. Healthy and, by extension, Lesage do not assist
the Court. In Mt. Healthy , the Court crafted, for the first
time, a remedial scheme for constitutional claims brought under 42
U. S. C. §1983. 429 U. S., at 285–287.
Significantly, that decision postdates enactment of the
federal-sector provision by three years. And Mt. Healthy did
not import a remedial scheme from a previously existing statute or
common-law rule. Rather, the Court cited other cases in which it
had similarly fashioned a novel causation standard for
constitutional claims—none of which concerned remedies—as
“instructive in formulating the test to be applied.” Id. , at
286–287. It is incongruous to suggest that Congress could have
intended to incorporate a remedial scheme that appears not to have
existed at the time the statute was passed. Moreover, Mt.
Healthy concerned a constitutional injury, and the Court was
tasked with creating a remedy for that injury in the face of
§1983’s silence. The Court fails to provide any explanation as to
why it is appropriate to rely on judicially fashioned remedies for
constitutional injuries in this purely statutory context.

															In sum, the Court implausibly concludes that, in
the federal-sector provision of the ADEA, Congress created a novel
“any consideration” causation standard but remained completely
silent as to what remedies were available under that new rule. Just
as implausibly, the Court assumes from this congressional silence
that Congress intended for judges to craft a remedial scheme in
which the available relief would vary depending on the inflicted
injury, using an as-yet- unknown scheme.

															I would not follow such an unusual course. We
have stated in the past that we must “read [the ADEA] the way
Congress wrote it.” Meacham v. Knolls Atomic Power
Laboratory , 554 U.S.
84 , 102 (2008). The federal-sector provision contains no clear
language displacing the default rule, and Congress has demonstrated
that it knows how to do so when it wishes. See 42
U. S. C. §2000e–2(m) (providing that an employer is
liable if an employee establishes that a protected characteristic
was a motivating factor in an employment action); §2000e–5(g)(2)(B)
(limiting the remedies available to plaintiffs who establish
motivating factor liability).[ 1 ] Rather than supplementing a novel rule with a
judicially crafted remedy, I would infer from the textual silence
that Congress wrote the ADEA to conform to the default rule of
but-for causation.

															II

															Perhaps the most striking aspect of the
Court’s analysis is its failure to grapple with the sheer
unworkability of its rule. The Court contends that a plaintiff may
successfully bring a cause of action if age “taint[s]” the making
of a personnel action, even if the agency would have reached the
same outcome absent any age-based discrimination. Ante , at
6–7. Because §633a(a)’s language also appears in the federal-sector
provision of Title VII, 42 U. S. C. §2000e–

															16(a), the Court’s rule presumably applies to
claims alleging discrimination based on sex, race, religion, color,
and national origin as well.

															The Court’s rule might have some purchase if, as
Babb contends, the Federal Government purposely set up a purely
merit-based system for its personnel actions. But as anyone with
knowledge of the Federal Government’s hiring practices knows, this
is hardly the case. Federal hiring is riddled with exceptions and
affirmative action programs, which by their very nature are not
singularly focused on merit.

															A few examples suffice to demonstrate this
point. The Veterans Preference Act of 1944 entitles certain
veterans, their spouses, and their parents to preferences in hiring
and in retention during reductions in force. 5 U. S. C.
§§2108(3), 3502, 3309; 5 CFR §211.102 (2019). Affirmative action
exists for people with disabilities, both in competitive and
noncompetitive employment. See 29 U. S. C. §791; 5 CFR
§213.3102(u); 29 CFR §1614.203(d) (2019). The Federal Equal
Opportunity Recruitment Program requires agencies to implement
recruitment plans for women and certain underrepresented
minorities. 5 U. S. C. §7201; 5 CFR §720.205. And Exec.
Order No. 13171, 3 CFR 299 (2000), requires federal agencies to
“provide a plan for recruiting Hispanics that creates a fully
diverse work force for the agency in the 21st century.” Whatever
the wisdom of these policies, they are not strictly merit-based
hiring.

															The Court’s new rule is irreconcilable with
these various programs because affirmative action initiatives
always taint personnel actions with consideration of a protected
characteristic. Consider Exec. Order No. 13583, 3 CFR 267 (2011),
which directs agencies to “develop and implement a more
comprehensive, integrated, and strategic focus on diversity and
inclusion as a key component of their human resources strategies.”
To provide just one example of how agencies are implementing this
requirement, Customs and Border Protection’s plan commits the
agency to “[i]ncreas[ing the] percentage of applicants from
underrepresented groups for internships and fellowships,”
“[c]reat[ing] a targeted outreach campaign to underrepresented
groups for career development programs at all levels,”
“[e]stablish[ing] and maintain[ing] strategic partnerships with
diverse professional and affinity organizations,” “[a]nalyz[ing]
demographic data for new hires and employee separations to identify
and assess potential barriers to workforce diversity,” and
“[d]evelop[ing] a diversity recruitment performance dashboard which
provides relevant statistics and related performance metrics to
evaluate progress towards achievement of recruitment goals.”
U. S. Customs and Border Protection, Privacy and Diversity
Office, Diversity and Inclusion: Strategic Plan 2016–2020, pp.
11–15 (2015). Programs such as these intentionally inject race,
sex, and national origin into agencies’ hiring and promotion
decisions at the express direction of the President or
Congress.

															A but-for (or even a motivating-factor[ 2 ]) standard of causation could coexist
relatively easily with these affirmative action programs, as it
would be difficult for a plaintiff to plausibly plead facts
sufficient to establish the requisite causation. The Court’s rule,
by contrast, raises the possibility that agencies will be faced
with a flood of investigations by the EEOC or litigation from
dissatisfied federal employees. So long as those employees can show
that their employer’s decision to hire a particular job applicant
was “tainted” because that applicant benefited in some way from an
affirmative action program, their complaints to enjoin these
programs can survive at least the pleadings stage.[ 3 ]

															*  *  *

															Today’s decision is inconsistent with the
default rule underlying our interpretation of antidiscrimination
statutes and our precedents, which have consistently applied that
rule. Perhaps just as important, the Court’s holding unnecessarily
risks imposing hardship on those tasked with managing thousands of
employees within our numerous federal agencies. I respectfully
dissent. Notes 1 Courts have followed
similar reasoning when determining the standard of causation under
the Americans with Disabilities Act. See, e.g., Natofsky v. New York , 921 F.3d 337, 346–348 (CA2 2019); Gentry v. East West Partners Club Mgmt. Co. , 816 F.3d 228, 233–236
(CA4 2016); Serwatka v. Rockwell Automation , Inc. , 591 F.3d 957, 961–964 (CA7 2010). 2 Many Courts of Appeals
apply the motivating-factor standard tofederal-sector Title VII
claims. See, e.g., Ponce v. Billington , 679 F.3d 840,
844 (CADC 2012); Makky v. Chertoff , 541 F.3d 205,
213–214 (CA3 2008). Even assuming this is a correct interpretation,
see 42 U. S. C. §2000e–16(d) (incorporating by reference
the private-sector motivating-factor provisions), the Court’s “any
consideration” rule imposes an even lower bar. No party submitted
briefing on the criteria that courts or the Equal Employment
Opportunity Commission (EEOC) use to establish a motivating factor,
but the cases from which this standard was derived indicate that it
mirrored the tort concept of substantial cause. See, e.g., Price
Waterhouse v. Hopkins , 490 U.S.
228 , 249 (1989) (plurality opinion); Mt. Healthy City Bd. of
Ed. v. Doyle, 429 U.S.
274 , 287 (1977). 3 On this score, it is
worth mentioning that even the EEOC has not adopted the Court’s low
bar but instead employs a motivating-factor standard. See, e.g., Brenton W. v. Chao , 2017 WL 2953878, *9
(June 29, 2017); Arroyo v. Shinseki , 2012 WL 2952078,
*4 (July 11, 2012).

Summary: The Supreme Court ruled that the federal-sector provision of the Age Discrimination in Employment Act protects individuals aged 40 and older from any discrimination based on age in personnel actions. The Court interpreted the phrase "made free from any discrimination based on age" to mean that personnel actions must be entirely free from age-based considerations. However, to obtain certain forms of relief, such as hiring, reinstatement, backpay, or compensatory damages, a plaintiff must show that age was a "but-for cause" of the employment decision. The Court's ruling raises concerns about the potential burden on federal agencies and the possibility of increased litigation.


Oncale v. Sundowner Offshore Services, Inc.

OCTOBER TERM, 1997

															Syllabus

															ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC., ET AL.

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT No. 96-568. Argued December 3, 1997-Decided March 4,1998 Petitioner Oncale filed a complaint against his employer,
respondent Sundowner Offshore Services, Inc., claiming that sexual
harassment directed against him by respondent co-workers in their
workplace constituted "discriminat[ion] ... because of ... sex"
prohibited by Title VII of the Civil Rights Act of 1964, 42 U. S.
C. § 2000e-2(a)(1). Relying on Fifth Circuit precedent, the
District Court held that Oncale, a male, had no Title VII cause of
action for harassment by male co-workers. The Fifth Circuit
affirmed. Held: Sex discrimination consisting of same-sex sexual
harassment is actionable under Title VII. Title VII's prohibition
of discrimination "because of ... sex" protects men as well as
women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462
U. S. 669 , 682, and in the related context of racial
discrimination in the workplace this Court has rejected any
conclusive presumption that an employer will not discriminate
against members of his own race, Castaneda v. Partida, 430
U. S. 482 , 499. There is no justification in Title VII's
language or the Court's precedents for a categorical rule barring a
claim of discrimination "because of ... sex" merely because the
plaintiff and the defendant (or the person charged with acting on
behalf of the defendant) are of the same sex. Recognizing liability
for same-sex harassment will not transform Title VII into a general
civility code for the American workplace, since Title VII is
directed at discrimination because of sex, not merely conduct
tinged with offensive sexual connotations; since the statute does
not reach genuine but innocuous differences in the ways men and
women routinely interact with members of the same, and the
opposite, sex; and since the objective severity of harassment
should be judged from the perspective of a reasonable person in the
plaintiff's position, considering all the circumstances. Pp.
78-82. 83 F.3d
118 , reversed and remanded.

															SCALIA, J., delivered the opinion for a unanimous Court. THOMAS,
J., filed a concurring opinion, post, p. 82. 76 Nicholas Canaday III argued the cause for petitioner.

															With him on the briefs were Andre P. LaPlace and Eric
Schnapper.

															Deputy Solicitor General Kneedler argued the cause for the
United States as amicus curiae urging reversal. On the brief were
Acting Solicitor General Dellinger, Acting Assistant Attorney
General Pinzler, Deputy Solicitor General Waxman, Beth S.
Brinkmann, C. Gregory Stewart, J. Ray Terry, Jr., Gwendolyn Young
Reams, and Carolyn L. Wheeler. Harry M. Reasoner argued the cause for respondents.

															With him on the brief were John H. Smither, Marie R. Yeates,
Thomas H. Wilson, and Samuel Issacharoff*

															JUSTICE SCALIA delivered the opinion of the Court.

															This case presents the question whether workplace harassment can
violate Title VII's prohibition against "discriminat[ion] ...
because of ... sex," 42 U. S. C. § 2000e-2(a)(1), when the harasser
and the harassed employee are of the same sex.

															I

															The District Court having granted summary judgment for
respondents, we must assume the facts to be as alleged by
petitioner Joseph Oncale. The precise details are irrelevant

															*Briefs of amici curiae urging reversal were filed for
the Association of Trial Lawyers of America by Ellen Simon
Sacks and Christopher P. Thorman; for the Lambda Legal
Defense and Education Fund et al. by Beatrice Dohrn, John
Davidson, Ruth Harlow, Steven R. Shapiro, Sara L. Mandelbaum, and Minna J. Kotkin; for the National Employment
Lawyers Association by Margaret A. Harris and Anne
Golden; for the National Organization on Male Sexual
Victimization, Inc., by Catharine A. MacKinnon; and for Law
Professors by Nan D. Hunter. Briefs of amici curiae urging affirmance were filed for
the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; and for the Texas Association of
Business & Chambers of Commerce by Jeffrey C. Londa and Linda Ottinger Headley. 77 to the legal point we must decide, and in the interest of both
brevity and dignity we shall describe them only generally. In late
October 1991, Oncale was working for respondent Sundowner Offshore
Services, Inc., on a Chevron U. S. A., Inc., oil platform in the
Gulf of Mexico. He was employed as a roustabout on an eight-man
crew which included respondents John Lyons, Danny Pippen, and
Brandon Johnson. Lyons, the crane operator, and Pippen, the
driller, had supervisory authority, App. 41, 77, 43. On several
occasions, Oncale was forcibly subjected to sex-related,
humiliating actions against him by Lyons, Pippen, and Johnson in
the presence of the rest of the crew. Pippen and Lyons also
physically assaulted Oncale in a sexual manner, and Lyons
threatened him with rape.

															Oncale's complaints to supervisory personnel produced no
remedial action; in fact, the company's Safety Compliance Clerk,
Valent Hohen, told Oncale that Lyons and Pippen "picked [on] him
all the time too," and called him a name suggesting homosexuality. Id., at 77. Oncale eventually quit-asking that his pink slip
reflect that he "voluntarily left due to sexual harassment and
verbal abuse." Id., at 79. When asked at his deposition why
he left Sundowner, Oncale stated: "I felt that if I didn't leave my
job, that I would be raped or forced to have sex." Id., at
71.

															Oncale filed a complaint against Sundowner in the United States
District Court for the Eastern District of Louisiana, alleging that
he was discriminated against in his employment because of his sex.
Relying on the Fifth Circuit's decision in Garcia v. Elf
Atochem North America, 28 F.3d
446 , 451-452 (1994), the District Court held that "Mr. Oncale,
a male, has no cause of action under Title VII for harassment by
male co-workers." App. 106. On appeal, a panel of the Fifth Circuit
concluded that Garcia was binding Circuit precedent, and
affirmed. 83 F.3d
118 (1996). We granted certiorari. 520 U. S. 1263 (1997). 78 II

															Title VII of the Civil Rights Act of 1964 provides, in relevant
part, that "[i]t shall be an unlawful employment practice for an
employer ... to discriminate against 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." 78 Stat. 255, as amended, 42 U. S. C. §
2000e-2(a)(1). We have held that this not only covers "terms" and
"conditions" in the narrow contractual sense, but "evinces a
congressional intent to strike at the entire spectrum of disparate
treatment of men and women in employment." Meritor Savings Bank,
FSB v. Vinson, 477 U. S. 57 , 64 (1986)
(citations and internal quotation marks omitted). "When the
workplace is permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working
environment, Title VII is violated." Harris v. Forklift
Systems, Inc., 510 U. S. 17, 21 (1993) (citations and internal
quotation marks omitted).

															Title VII's prohibition of discrimination "because of ... sex"
protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 , 682
(1983), and in the related context of racial discrimination in the
workplace we have rejected any conclusive presumption that an
employer will not discriminate against members of his own race.
"Because of the many facets of human motivation, it would be unwise
to presume as a matter of law that human beings of one definable
group will not discriminate against other members of their group." Castaneda v. Partida, 430 U. S. 482 , 499
(1977). See also id., at 515-516, n. 6 (Powell, J., joined
by Burger, C. J., and REHNQUIST, J., dissenting). In Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616 (1987), a
male employee claimed that his employer discriminated against him
because of his sex when it preferred a female employee for
promotion. AI- 79 though we ultimately rejected the claim on other grounds, we did
not consider it significant that the supervisor who made that
decision was also a man. See id., at 624-625. If our precedents
leave any doubt on the question, we hold today that nothing in
Title VII necessarily bars a claim of discrimination "because of
... sex" merely because the plaintiff and the defendant (or the
person charged with acting on behalf of the defendant) are of the
same sex.

															Courts have had little trouble with that principle in cases like Johnson, where an employee claims to have been passed over
for a job or promotion. But when the issue arises in the context of
a "hostile environment" sexual harassment claim, the state and
federal courts have taken a bewildering variety of stances. Some,
like the Fifth Circuit in this case, have held that same-sex sexual
harassment claims are never cognizable under Title VII. See also, e. g., Goluszek v. H. P. Smith, 697 F. Supp. 1452 (ND
Ill. 1988). Other decisions say that such claims are actionable
only if the plaintiff can prove that the harasser is homosexual
(and thus presumably motivated by sexual desire). Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d
1191 (CA4 1996), with Wrightson v. Pizza Hut of
America, 99 F.3d
138 (CA4 1996). Still others suggest that workplace harassment
that is sexual in content is always actionable, regardless of the
harasser's sex, sexual orientation, or motivations. See Doe v. Belleville, 119 F.3d
563 (CA7 1997).

															We see no justification in the statutory language or our
precedents for a categorical rule excluding same-sex harassment
claims from the coverage of Title VII. As some courts have
observed, male-on-male sexual harassment in the workplace was
assuredly not the principal evil Congress was concerned with when
it enacted Title VII. But statutory prohibitions often go beyond
the principal evil to cover reasonably comparable evils, and it is
ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed. Title VII
prohibits "discrimina- 80 t[ion] ... because of ... sex" in the "terms" or "conditions" of
employment. Our holding that this includes sexual harassment must
extend to sexual harassment of any kind that meets the statutory
requirements.

															Respondents and their amici contend that recognizing
liability for same-sex harassment will transform Title VII into a
general civility code for the American workplace. But that risk is
no greater for same-sex than for opposite-sex harassment, and is
adequately met by careful attention to the requirements of the
statute. Title VII does not prohibit all verbal or physical
harassment in the workplace; it is directed only at "discriminat[ion] ... because of ... sex." We have never
held that workplace harassment, even harassment between men and
women, is automatically discrimination because of sex merely
because the words used have sexual content or connotations. "The
critical issue, Title VII's text indicates, is whether members of
one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed." Harris, supra, at 25 (GINSBURG, J., concurring).

															Courts and juries have found the inference of discrimination
easy to draw in most male-female sexual harassment situations,
because the challenged conduct typically involves explicit or
implicit proposals of sexual activity; it is reasonable to assume
those proposals would not have been made to someone of the same
sex. The same chain of inference would be available to a plaintiff
alleging same-sex harassment, if there were credible evidence that
the harasser was homosexual. But harassing conduct need not be
motivated by sexual desire to support an inference of
discrimination on the basis of sex. A trier of fact might
reasonably find such discrimination, for example, if a female
victim is harassed in such sex-specific and derogatory terms by
another woman as to make it clear that the harasser is motivated by
general hostility to the presence of women in the workplace. A
same-sex harassment plaintiff may also, of course, offer di- 81 rect comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace. Whatever
evidentiary route the plaintiff chooses to follow, he or she must
always prove that the conduct at issue was not merely tinged with
offensive sexual connotations, but actually constituted "discrimina[tion] ... because of ... sex."

															And there is another requirement that prevents Title VII from
expanding into a general civility code: As we emphasized in Meritor and Harris, the statute does not reach
genuine but innocuous differences in the ways men and women
routinely interact with members of the same sex and of the opposite
sex. The prohibition of harassment on the basis of sex requires
neither asexuality nor androgyny in the workplace; it forbids only
behavior so objectively offensive as to alter the "conditions" of
the victim's employment. "Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work
environment-an environment that a reasonable person would find
hostile or abusive-is beyond Title VII's purview." Harris, 510 U. S., at 21, citing Meritor, 477 U. S., at 67. We have
always regarded that requirement as crucial, and as sufficient to
ensure that courts and juries do not mistake ordinary socializing
in the workplace-such as male-on-male horseplay or intersexual
flirtation-for discriminatory "conditions of employment."

															We have emphasized, moreover, that the objective severity of
harassment should be judged from the perspective of a reasonable
person in the plaintiff's position, considering "all the
circumstances." Harris, supra, at 23. In same-sex (as in
all) harassment cases, that inquiry requires careful consideration
of the social context in which particular behavior occurs and is
experienced by its target. A professional football player's working
environment is not severely or pervasively abusive, for example, if
the coach smacks him on the buttocks as he heads onto the
field-even if the same behavior would reasonably be experienced as
abusive by the coach's secretary (male or female) back at the
office. The 82 82 ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC.

															THOMAS, J., concurring

															real social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple recitation
of the words used or the physical acts performed. Common sense, and
an appropriate sensitivity to social context, will enable courts
and juries to distinguish between simple teasing or roughhousing
among members of the same sex, and conduct which a reasonable
person in the plaintiff's position would find severely hostile or
abusive.

															III

															Because we conclude that sex discrimination consisting of
same-sex sexual harassment is actionable under Title VII, the
judgment of the Court of Appeals for the Fifth Circuit is reversed,
and the case is remanded for further proceedings consistent with
this opinion.

															It is so ordered.

															JUSTICE THOMAS, concurring.

															I concur because the Court stresses that in every sexual
harassment case, the plaintiff must plead and ultimately prove
Title VII's statutory requirement that there be discrimination
"because of ... sex."

Summary: The Supreme Court ruled that same-sex sexual harassment is a form of sex discrimination and is prohibited under Title VII of the Civil Rights Act of 1964. The Court held that Title VII protects both men and women from sexual harassment by members of the same sex, and that the severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position. The Court emphasized that Title VII does not regulate "genuine but innocuous differences in the ways men and women routinely interact" and that the statute is concerned with behavior that is "objectively offensive." The Court also noted the importance of considering the social context in which the behavior occurs.