Justice KENNEDY delivered the opinion of the Court.
When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged. The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers.
Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation's workplaces and in all sectors of economic endeavor. This opinion discusses the causation rules for two categories of wrongful employer conduct prohibited by Title VII. The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. See § 2000e-2(a). The second type of conduct is employer retaliation on account of an employee's having opposed, complained of, or sought remedies for, unlawful workplace discrimination. See § 2000e-3(a).
An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury
Although the Court has not addressed the question of the causation showing required to establish liability for a Title VII retaliation claim, it has addressed the issue of causation in general in a case involving employer discrimination under a separate but related statute, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 623. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In Gross, the Court concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. The holding and analysis of that decision are instructive here.
Petitioner, the University of Texas Southwestern Medical Center (University), is an academic institution within the University of Texas system. The University specializes in medical education for aspiring physicians, health professionals, and scientists. Over the years, the University has affiliated itself with a number of healthcare facilities including, as relevant in this case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the University, the Hospital permits the University's students to gain clinical experience working in its facilities. The agreement also requires the Hospital to offer empty staff physician posts to the University's faculty members, see App. 361-362, 366, and, accordingly, most of the staff physician positions at the Hospital are filled by those faculty members.
Respondent is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a member of the University's faculty and a staff physician at the Hospital. He left both positions in 1998 for additional medical education and then returned in 2001 as an assistant professor at the University and, once again, as a physician at the Hospital.
In 2004, Dr. Beth Levine was hired as the University's Chief of Infectious Disease Medicine. In that position Levine became respondent's ultimate (though not direct) superior. Respondent alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that "`Middle Easterners are lazy.'" 674 F.3d 448, 450 (C.A.5 2012). On different occasions during his employment, respondent met with Dr. Gregory Fitz, the University's Chair of Internal Medicine and Levine's supervisor, to complain about Levine's alleged harassment. Despite obtaining a promotion with Levine's assistance in 2006, respondent continued to believe that she was biased against him. So he tried to arrange to continue working at the Hospital without also being on the University's faculty. After preliminary negotiations with the Hospital
Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agreement's requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer.
After exhausting his administrative remedies, respondent filed this Title VII suit in the United States District Court for the Northern District of Texas. He alleged two discrete violations of Title VII. The first was a status-based discrimination claim under § 2000e-2(a). Respondent alleged that Dr. Levine's racially and religiously motivated harassment had resulted in his constructive discharge from the University. Respondent's second claim was that Dr. Fitz's efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine's harassment, in violation of § 2000e-3(a). 674 F.3d, at 452. The jury found for respondent on both claims. It awarded him over $400,000 in backpay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000.
On appeal, the Court of Appeals for the Fifth Circuit affirmed in part and vacated in part. The court first concluded that respondent had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury's verdict. The court affirmed as to the retaliation finding, however, on the theory that retaliation claims brought under § 2000e-3(a) — like claims of status-based discrimination under § 2000e-2(a) — require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox Corp., 602 F.3d 320, 330 (C.A.5 2010)). It further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. The Court of Appeals then remanded for a redetermination of damages in light of its decision to vacate the constructive-discharge verdict.
Four judges dissented from the court's decision not to rehear the case en banc, arguing that the Circuit's application of the motivating-factor standard to retaliation cases was "an erroneous interpretation of [Title VII] and controlling caselaw" and should be overruled en banc. 688 F.3d 211, 213-214 (C.A.5 2012) (Smith, J., dissenting from denial of rehearing en banc).
Certiorari was granted. 568 U.S. ___, 133 S.Ct. 978, 184 L.Ed.2d 758 (2013).
This case requires the Court to define the proper standard of causation for Title VII retaliation claims. Causation in fact — i.e., proof that the defendant's conduct did in fact cause the plaintiff's injury — is a standard requirement of any tort claim, see Restatement of Torts § 9 (1934) (definition of "legal cause"); § 431, Comment
In the usual course, this standard requires the plaintiff to show "that the harm would not have occurred" in the absence of — that is, but for — the defendant's conduct. Restatement of Torts § 431, Comment a (negligence); § 432(1), and Comment a (same); see § 279, and Comment c (intentional infliction of bodily harm); § 280 (other intentional torts); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27, and Comment b (2010) (noting the existence of an exception for cases where an injured party can prove the existence of multiple, independently sufficient factual causes, but observing that "cases invoking the concept are rare"). See also Restatement (Second) of Torts § 432(1) (1963 and 1964) (negligence claims); § 870, Comment l (intentional injury to another); cf. § 435a, and Comment a (legal cause for intentional harm). It is thus textbook tort law that an action "is not regarded as a cause of an event if the particular event would have occurred without it." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003); Carey v. Piphus, 435 U.S. 247, 257-258, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978).
Since the statute's passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them — race, color, religion, sex, and national origin — are personal characteristics and are set forth in § 2000e-2. (As noted at the outset, discrimination based on these five characteristics is called status-based discrimination in this opinion.) And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct — the employee's opposition to employment discrimination, and the employee's submission of or support for a complaint that alleges employment, discrimination — are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, § 2000e-3(a).
Under the status-based discrimination provision, it is an "unlawful employment practice" for an employer "to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin." § 2000e-2(a). In its 1989 decision in Price Waterhouse, the Court sought to explain the causation standard imposed by this language. It addressed in particular what it means for an action to
Two years later, Congress passed the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071. This statute (which had many other provisions) codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree. The legislation first added a new subsection to the end of § 2000e-2, i.e., Title VII's principal ban on status-based discrimination. See § 107(a), 105 Stat. 1075. The new provision, § 2000e-2(m), states:
This, of course, is a lessened causation standard.
The 1991 Act also abrogated a portion of Price Waterhouse's framework by removing the employer's ability to defeat liability once a plaintiff proved the existence of an impermissible motivating factor. See Gross, 557 U.S., at 178, n. 5, 129 S.Ct. 2343. In its place, Congress enacted § 2000e-5(g)(2), which provides:
So, in short, the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. Under that new regime, a plaintiff could obtain declaratory relief, attorney's fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer's proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order. See Gross, 557 U.S., at 178, n. 5, 129 S.Ct. 2343; see also id., at 175, n. 2, 177, n. 3, 129 S.Ct. 2343.
After Price Waterhouse and the 1991 Act, considerable time elapsed before the Court returned again to the meaning of "because" and the problem of causation. This time it arose in the context of a different, yet similar statute, the ADEA, 29 U.S.C. § 623(a). See Gross, supra.
Concentrating first and foremost on the meaning of the phrase "`because of ... age,'" the Court in Gross explained that the ordinary meaning of "`because of'" is "`by reason of'" or "`on account of.'" Id., at 176, 129 S.Ct. 2343 (citing 1 Webster's Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966); emphasis in original). Thus, the "requirement that an employer took adverse action `because of' age [meant] that age was the `reason' that the employer decided to act," or, in other words, that "age was the `but-for' cause of the employer's adverse decision." 557 U.S., at 176, 129 S.Ct. 2343. See also Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63-64, and n. 14, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (noting that "because of" means "based on" and that "`based on' indicates a but-for causal relationship"); Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 265-266, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (equating "by reason of" with "`but for' cause").
In the course of approving this construction, Gross declined to adopt the interpretation endorsed by the plurality and concurring opinions in Price Waterhouse. Noting that "the ADEA must be `read ... the way Congress wrote it,'" 557 U.S., at 179, 129 S.Ct. 2343 (quoting Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84, 102, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008)), the Court concluded that "the textual differences between Title VII and the ADEA" "prevent[ed] us from applying Price Waterhouse ... to federal age discrimination claims," 557 U.S., at 175, n. 2, 129 S.Ct. 2343. In particular, the Court stressed the congressional choice not to add a provision like § 2000e-2(m) to the ADEA despite making numerous other changes to the latter statute in the 1991 Act. Id., at 174-175, 129 S.Ct. 2343 (citing EEOC v. Arabian American Oil Co., 499 U.S. 244, 256, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991)); 557 U.S., at 177, n. 3, 129 S.Ct. 2343 (citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 270, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009)).
Finally, the Court in Gross held that it would not be proper to read Price Waterhouse as announcing a rule that applied to both statutes, despite their similar wording and near-contemporaneous enactment. 557 U.S., at 178, n. 5, 129 S.Ct. 2343. This different reading was necessary, the Court concluded, because Congress' 1991 amendments to Title VII, including its "careful tailoring of the `motivating factor' claim" and the substitution of § 2000e-5(g)(2)(B) for Price Waterhouse's full affirmative defense, indicated that the motivating-factor standard was not an organic part of Title VII and thus could not be read into the ADEA. See 557 U.S., at 178, n. 5, 129 S.Ct. 2343.
In Gross, the Court was careful to restrict its analysis to the statute before it and withhold judgment on the proper resolution of a case, such as this, which arose under Title VII rather than the ADEA. But the particular confines of Gross do not deprive it of all persuasive force. Indeed, that opinion holds two insights for the present case. The first is textual and concerns the proper interpretation of the term
As noted, Title VII's antiretaliation provision, which is set forth in § 2000e-3(a), appears in a different section from Title VII's ban on status-based discrimination. The antiretaliation provision states, in relevant part:
This enactment, like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action against an employee "because" of certain criteria. Cf. 29 U.S.C. § 623(a)(1). Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. See Gross, supra, at 176, 129 S.Ct. 2343.
The principal counterargument offered by respondent and the United States relies on their different understanding of the motivating-factor section, which — on its face — applies only to status discrimination, discrimination on the basis of race, color, religion, sex, and national origin. In substance, they contend that: (1) retaliation is defined by the statute to be an unlawful employment practice; (2) § 2000e-2(m) allows unlawful employment practices to be proved based on a showing that race, color, religion, sex, or national origin was a motivating factor for — and not necessarily the but-for factor in — the challenged employment action; and (3) the Court has, as a matter of course, held that "retaliation for complaining about race discrimination is `discrimination based on race.'" Brief for United States as Amicus Curiae 14; see id., at 11-14; Brief for Respondent 16-19.
There are three main flaws in this reading of § 2000e-2(m). The first is that it is inconsistent with the provision's plain language. It must be acknowledged that because Title VII defines "unlawful employment practice" to include retaliation, the question presented by this case would be different if § 2000e-2(m) extended its coverage to all unlawful employment practices. As actually written, however, the text of the motivating-factor provision, while it begins by referring to "unlawful employment practices," then proceeds to address only five of the seven prohibited discriminatory actions — actions based on the employee's status, i.e., race, color, religion, sex, and national origin. This indicates Congress' intent to confine that provision's coverage to only those types of employment practices. The text of § 2000e-2(m) says nothing about retaliation claims. Given this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope. Gardner v. Collins, 2 Pet. 58, 93, 7 S.Ct. 347 (1829) ("What the legislative intention was, can be derived only from the words they have used; and we cannot speculate beyond the
The second problem with this reading is its inconsistency with the design and structure of the statute as a whole. See Gross, 557 U.S., at 175, n. 2, 178, n. 5, 129 S.Ct. 2343. Just as Congress' choice of words is presumed to be deliberate, so too are its structural choices. See id., at 177, n. 3, 129 S.Ct. 2343. When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within § 2000e-2, which contains Title VII's ban on status-based discrimination, § 2000e-2(a) to (d), (l), and says nothing about retaliation. See 1991 Act, § 107(a), 105 Stat. 1075 (directing that "§ 2000e-2... [be] further amended by adding at the end the following new subsection ... (m)"). The title of the section of the 1991 Act that created § 2000e-2(m) — "Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices" — also indicates that Congress determined to address only claims of status-based discrimination, not retaliation. See § 107(a), id., at 1075.
What is more, a different portion of the 1991 Act contains an express reference to all unlawful employment actions, thereby reinforcing the conclusion that Congress acted deliberately when it omitted retaliation claims from § 2000e-2(m). See Arabian American Oil Co., 499 U.S., at 256, 111 S.Ct. 1227 (congressional amendment of ADEA on a similar subject coupled with congressional failure to amend Title VII weighs against conclusion that the ADEA's standard applies to Title VII); see also Gross, supra, at 177, n. 3, 129 S.Ct. 2343. The relevant portion of the 1991 Act, § 109(b), allowed certain overseas operations by U.S. employers to engage in "any practice prohibited by section 703 or 704," i.e., § 2000e-2 or § 2000e-3, "if compliance with such section would cause such employer... to violate the law of the foreign country in which such workplace is located." 105 Stat. 1077.
If Congress had desired to make the motivating-factor standard applicable to all Title VII claims, it could have used language similar to that which it invoked in § 109. See Arabian American Oil Co., supra, at 256, 111 S.Ct. 1227 Or, it could have inserted the motivating-factor provision as part of a section that applies to all such claims, such as § 2000e-5, which establishes the rules and remedies for all Title VII enforcement actions. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). But in writing § 2000e-2(m), Congress did neither of those things, and "[w]e must give effect to Congress' choice." Gross, supra, at 177, n. 3, 129 S.Ct. 2343.
The third problem with respondent's and the Government's reading of the motivating-factor standard is in its submission that this Court's decisions interpreting federal antidiscrimination law have, as a general matter, treated bans on status-based discrimination as also prohibiting retaliation. In support of this proposition, both respondent and the United States rely upon decisions in which this Court has "read [a] broadly worded civil rights statute... as including an antiretaliation remedy." CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452-453, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). In CBOCS, for example, the Court held that 42 U.S.C. § 1981 — which declares that all persons "shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens" — prohibits not only racial discrimination but also retaliation against those who oppose it. 553 U.S., at 445, 128 S.Ct. 1951. And in Gómez-Pérez v. Potter,
These decisions are not controlling here. It is true these cases do state the general proposition that Congress' enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, even where the statute does not refer to retaliation in so many words. What those cases do not support, however, is the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for "retaliation." For one thing, § 2000e-2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII. The cases cited by respondent and the Government do not address rules of this sort, and those precedents are of limited relevance here.
The approach respondent and the Government suggest is inappropriate in the context of a statute as precise, complex, and exhaustive as Title VII. As noted, the laws at issue in CBOCS, Jackson, and Gómez-Pérez were broad, general bars on discrimination. In interpreting them the Court concluded that by using capacious language Congress expressed the intent to bar retaliation in addition to status-based discrimination. See Gómez-Pérez, supra, at 486-488, 128 S.Ct. 1931. In other words, when Congress' treatment of the subject of prohibited discrimination was both broad and brief, its omission of any specific discussion of retaliation was unremarkable.
If Title VII had likewise been phrased in broad and general terms, respondent's argument might have more force. But that is not how Title VII was written, which makes it incorrect to infer that Congress meant anything other than what the text does say on the subject of retaliation. Unlike Title IX, § 1981, § 1982, and the federal-sector provisions of the ADEA, Title VII is a detailed statutory scheme. This statute enumerates specific unlawful employment practices. See § 2000e-2(a)(1), (b), (c)(1), (d) (status-based discrimination by employers, employment agencies, labor organizations, and training programs, respectively); § 2000e-2(l) (status-based discrimination in employment-related testing); § 2000e-3(a) (retaliation for opposing, or making or supporting a complaint about, unlawful employment actions); § 2000e-3(b) (advertising a preference for applicants of a particular race, color, religion, sex, or national origin). It defines key terms, see § 2000e, and exempts certain types of employers, see § 2000e-1. And it creates an administrative agency with both rulemaking and enforcement authority. See §§ 2000e-5, 2000e-12.
This fundamental difference in statutory structure renders inapposite decisions which treated retaliation as an implicit corollary of status-based discrimination. Text may not be divorced from context. In light of Congress' special care in drawing so precise a statutory scheme, it would be improper to indulge respondent's suggestion that Congress
Further confirmation of the inapplicability of § 2000e-2(m) to retaliation claims may be found in Congress' approach to the Americans with Disabilities Act of 1990(ADA), 104 Stat. 327. In the ADA Congress provided not just a general prohibition on discrimination "because of [an individual's] disability," but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination, see §§ 102(a), (b)(1)(7), id., at 331-332 (codified at 42 U.S.C. § 12112). And, most pertinent for present purposes, it included an express antiretaliation provision, see § 503(a), 104 Stat. 370 (codified at 42 U.S.C. § 12203). That law, which Congress passed only a year before enacting § 2000e-2(m) and which speaks in clear and direct terms to the question of retaliation, rebuts the claim that Congress must have intended to use the phrase "race, color, religion, sex, or national origin" as the textual equivalent of "retaliation." To the contrary, the ADA shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so in clear textual terms.
The Court confronted a similar structural dispute in Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981). The question there was whether the federal-employment provisions of the ADEA, 29 U.S.C. § 633a, provided a jury-trial right for claims against the Federal Government. Nakshian, 453 U.S., at 157, 101 S.Ct. 2698. In concluding that it did not, the Court noted that the portion of the ADEA that prohibited age discrimination by private, state, and local employers, § 626, expressly provided for a jury trial, whereas the federal-sector provisions said nothing about such a right. Id., at 162-163, 168, 101 S.Ct. 2698. So, too, here. Congress has in explicit terms altered the standard of causation for one class of claims but not another, despite the obvious opportunity to do so in the 1991 Act.
The proper interpretation and implementation of § 2000e-3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years — from just over 16,000 in 1997 to over 31,000 in 2012. EEOC, Charge Statistics FY 1997 Through FY 2012, http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (as visited June 20, 2013, and available in Clerk of Court's case file). Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race. See ibid.
In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat
The facts of this case also demonstrate the legal and factual distinctions between status-based and retaliation claims, as well as the importance of the correct standard of proof. Respondent raised both claims in the District Court. The alleged wrongdoer differed in each: In respondent's status-based discrimination claim, it was his indirect supervisor, Dr. Levine. In his retaliation claim, it was the Chair of Internal Medicine, Dr. Fitz. The proof required for each claim differed, too. For the status-based claim, respondent was required to show instances of racial slurs, disparate treatment, and other indications of nationality-driven animus by Dr. Levine. Respondent's retaliation claim, by contrast, relied on the theory that Dr. Fitz was committed to exonerating Dr. Levine and wished to punish respondent for besmirching her reputation. Separately instructed on each type of claim, the jury returned a separate verdict for each, albeit with a single damages award. And the Court of Appeals treated each claim separately, too, finding insufficient evidence on the claim of status-based discrimination.
If it were proper to apply the motivating-factor standard to respondent's retaliation claim, the University might well be subject to liability on account of Dr. Fitz's alleged desire to exonerate Dr. Levine, even if it could also be shown that the terms of the affiliation agreement precluded the Hospital's hiring of respondent and that the University would have sought to prevent respondent's hiring in order to honor that agreement in any event. That result would be inconsistent with the both the text and purpose of Title VII.
In sum, Title VII defines the term "unlawful employment practice" as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of § 2000e-2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added § 2000e-2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination
Respondent and the Government also argue that applying the motivating-factor provision's lessened causation standard to retaliation claims would be consistent with longstanding agency views, contained in a guidance manual published by the EEOC. It urges that those views are entitled to deference under this Court's decision in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 S.Ct. 124 (1944). See National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 110, n. 6, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The weight of deference afforded to agency interpretations under Skidmore depends upon "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." 323 U.S., at 140, 65 S.Ct. 161; see Vance, post, at 9, n. 4.
According to the manual in question, the causation element of a retaliation claim is satisfied if "there is credible direct evidence that retaliation was a motive for the challenged action," regardless of whether there is also "[e]vidence as to [a] legitimate motive." 2 EEOC Compliance Manual § 8-II(E)(1), pp. 614:0007-614:0008 (Mar. 2003). After noting a division of authority as to whether motivating-factor or but-for causation should apply to retaliation claims, the manual offers two rationales in support of adopting the former standard. The first is that "[c]ourts have long held that the evidentiary framework for proving [status-based] discrimination ... also applies to claims of discrimination based on retaliation." Id., at 614:0008, n. 45. Second, the manual states that "an interpretation... that permits proven retaliation to go unpunished undermines the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism." Ibid.
These explanations lack the persuasive force that is a necessary precondition to deference under Skidmore. See 323 U.S., at 140, 65 S.Ct. 161; Vance, post, at 9, n. 4. As to the first rationale, while the settled judicial construction of a particular statute is of course relevant in ascertaining statutory meaning, see Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), the manual's discussion fails to address the particular interplay among the status-based discrimination provision (§ 2000e-2(a)), the antiretaliation provision (§ 2000e-3(a)), and the motivating-factor provision (§ 2000e-2(m)). Other federal antidiscrimination statutes do not have the structure of statutory subsections that control the outcome at issue here. The manual's failure to address the specific provisions of this statutory scheme, coupled with the generic nature of its discussion of the causation standards for status-based discrimination and retaliation claims, call the manual's conclusions into serious question. See Kentucky Retirement Systems v. EEOC, 554 U.S. 135, 149-150, 128 S.Ct. 2361, 171 L.Ed.2d 322 (2008).
The manual's second argument is unpersuasive, too; for its reasoning is circular. It asserts the lessened causation standard is necessary in order to prevent "proven
Respondent's final argument, in which he is not joined by the United States, is that even if § 2000e-2(m) does not control the outcome in this case, the standard applied by Price Waterhouse should control instead. That assertion is incorrect. First, this position is foreclosed by the 1991 Act's amendments to Title VII. As noted above, Price Waterhouse adopted a complex burden-shifting framework. Congress displaced this framework by enacting § 2000e-2(m) (which adopts the motivating-factor standard for status-based discrimination claims) and § 2000e-5(g)(2)(B) (which replaces employers' total defense with a remedial limitation). See Gross, 557 U.S., at 175, n. 2, 177, n. 3, 178, n. 5, 129 S.Ct. 2343. Given the careful balance of lessened causation and reduced remedies Congress struck in the 1991 Act, there is no reason to think that the different balance articulated by Price Waterhouse somehow survived that legislation's passage. Second, even if this argument were still available, it would be inconsistent with the Gross Court's reading (and the plain textual meaning) of the word "because" as it appears in both § 623(a) and § 2000e-3(a). See Gross, supra, at 176-177, 129 S.Ct. 2343. For these reasons, the rule of Price Waterhouse is not controlling here.
The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer. The University claims that a fair application of this standard, which is more demanding than the motivating-factor standard adopted by the Court of Appeals, entitles it to judgment as a matter of law. It asks the Court to so hold. That question, however, is better suited to resolution by courts closer to the facts of this case. The judgment of the Court of Appeals for the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice GINSBURG, with whom Justice BREYER, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., makes it an "unlawful employment practice" to "discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin." § 2000e-2(a) (emphasis added). Backing up that core provision, Title VII also makes it an "unlawful employment practice" to discriminate against any individual "because" the individual has complained of, opposed, or participated in a proceeding about, prohibited discrimination. § 2000e-3(a) (emphasis added). This form of discrimination is commonly called "retaliation," although Title VII itself does not use that term. The Court has recognized that effective protection against retaliation, the office of § 2000e-3(a), is essential to securing "a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status." Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (Burlington Northern). That is so because "fear of retaliation is the leading reason why people stay silent" about the discrimination they have encountered
Similarly worded, the ban on discrimination and the ban on retaliation against a discrimination complainant have traveled together: Title VII plaintiffs often raise the two provisions in tandem. Today's decision, however, drives a wedge between the twin safeguards in so-called "mixedmotive" cases. To establish discrimination, all agree, the complaining party need show only that race, color, religion, sex, or national origin was "a motivating factor" in an employer's adverse action; an employer's proof that "other factors also motivated the [action]" will not defeat the discrimination claim. § 2000e-2(m). But a retaliation claim, the Court insists, must meet a stricter standard: The claim will fail unless the complainant shows "but-for" causation, i.e., that the employer would not have taken the adverse employment action but for a design to retaliate.
In so reining in retaliation claims, the Court misapprehends what our decisions teach: Retaliation for complaining about discrimination is tightly bonded to the core prohibition and cannot be disassociated from it. Indeed, this Court has explained again and again that "retaliation in response to a complaint about [proscribed] discrimination is discrimination" on the basis of the characteristic Congress sought to immunize against adverse employment action. Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 179, n. 3, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (emphasis added; internal quotation marks omitted).
The Court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination "because of," e.g., race is coupled with a claim of discrimination "because" the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards. Of graver concern, the Court has seized on a provision, § 2000e-2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation.
Dr. Naiel Nassar is of Middle Eastern descent. A specialist in the treatment of HIV/AIDS, Nassar was a faculty member of the University of Texas Southwestern Medical Center (UTSW) from 1995 until 2006, save for a period during which he left his employment to continue his education. UTSW is affiliated with Parkland Hospital and, like other faculty members at the University, Nassar also worked as a physician at the Hospital. Beginning in 2001, Nassar served as Associate Medical Director of the Hospital's Amelia Court Clinic.
Until 2004, Dr. Phillip Keiser, Medical Director of the Clinic, was Nassar's principal supervisor. In that year, UTSW hired Dr. Beth Levine to oversee the Clinic and to supervise Keiser. Before Levine commenced her employment at UTSW, she interviewed her potential subordinates. Meeting with other Clinic doctors for only 15 to 20 minutes, Levine spent an hour and a half with Nassar, engaging in a detailed review of his resume and reading from a list of prepared questions. Record 2926-2928.
Once Levine came on board, she expressed concern to Keiser about Nassar's productivity and questioned his work ethic. Id., at 2361-2362. According to Keiser, Levine "never seemed to [be] satisf[ied]" with his assurances that Nassar was in fact working harder than other physicians. Id., at 2362. Disconcerted by Levine's
In 2005, Levine opposed hiring another physician who, like Nassar, was of Middle Eastern descent. In Keiser's presence, Levine remarked that "Middle Easterners are lazy." Id., at 3. When that physician was hired by Parkland, Levine said, again in Keiser's presence, that the Hospital had "hired another one." Ibid. See also Record 2399-2400. Keiser presented to Levine objective data demonstrating Nassar's high productivity. Levine then began criticizing Nassar's billing practices. Her criticism did not take into account that Nassar's salary was funded by a federal grant that precluded billing for most of his services. App. to Pet. for Cert. 3.
Because of Levine's hostility, Nassar sought a way to continue working at the Clinic without falling under her supervision. To that end, Nassar engaged in discussions with the Hospital about dropping his affiliation with UTSW and retaining his post at Parkland. Although he was initially told that an affiliation agreement between UTSW and Parkland obliged Parkland to fill its staff physician posts with UTSW faculty, talks with the Hospital continued. Eventually, Parkland verbally offered Nassar a position as a staff physician. See App. 67-71, 214-216, 326-330.
In July 2006, Nassar resigned from his position at UTSW. "The primary reason [for his] resignation," Nassar wrote in a letter to Fitz, "[was] the continuing harassment and discrimination ... by ... Dr. Beth Levine." App. to Pet. for Cert. 5 (internal quotation marks omitted). According to Keiser, Nassar's letter shocked Fitz, who told Keiser that, because Levine had been "publicly humiliated," she should be "publicly exonerated." App. 41. Fitz's opposition to Parkland's hiring Nassar prompted the Hospital to withdraw the offer to engage him. App. to Pet. for Cert. 5-6.
After accepting a position at a smaller HIV/AIDS clinic in Fresno, California, Nassar filed a complaint with the Equal Employment Opportunity Commission (EEOC). The agency found "credibl[e] testimonial evidence," that UTSW had retaliated against Nassar for his allegations of discrimination by Levine. Brief for Respondent 8 (citing Pl. Trial Exh. 78). Nassar then filed suit in District Court alleging that UTSW had discriminated against him, in violation of Title VII, on the basis of his race, religion, and national origin, see § 2000e-2(a), and had constructively discharged him. App. to Pet. for Cert. 6; Complaint ¶ 23. He further alleged that UTSW had retaliated against him for complaining about Levine's behavior. App. to Pet. for Cert. 6.
On the retaliation claim, the District Court instructed the jury that Nassar "[did] not have to prove that retaliation was [UTSW's] only motive, but he [had to] prove that [UTSW] acted at least in part to retaliate." Id., at 47. The jury found UTSW liable for both constructive discharge and retaliation. At the remedial phase, the judge charged the jury not to award damages for "actions which [UTSW] prove[d] by a preponderance of the evidence... it would have taken even if it had not considered ... Nassar's protected activity." Id., at 42-43. Finding that UTSW had not met its proof burden, the jury awarded Nassar $438,167.66 in backpay and $3,187,500 in compensatory damages. Id., at 43-44.
This Court has long acknowledged the symbiotic relationship between proscriptions on discrimination and proscriptions on retaliation. Antidiscrimination provisions, the Court has reasoned, endeavor to create a workplace where individuals are not treated differently on account of race, ethnicity, religion, or sex. See Burlington Northern, 548 U.S., at 63, 126 S.Ct. 2405. Antiretaliation provisions "see[k] to secure that primary objective by preventing an employer from interfering... with an employee's efforts to secure or advance enforcement of [antidiscrimination] guarantees." Ibid. As the Court has comprehended, "Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses." Id., at 67, 126 S.Ct. 2405. "`[E]ffective enforcement,'" therefore, can "`only be expected if employees ... [feel] free to approach officials with their grievances.'" Ibid. (quoting Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960)). See also Crawford, 555 U.S., at 279, 129 S.Ct. 846.
Adverting to the close connection between discrimination and retaliation for complaining about discrimination, this Court has held, in a line of decisions unbroken until today, that a ban on discrimination encompasses retaliation. In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), the Court determined that 42 U.S.C. § 1982, which provides that "[a]ll citizens of the United States shall have the same right ... as is enjoyed by white citizens ... to inherit, purchase, lease, sell, hold, and convey real and personal property," protected a white man who suffered retaliation after complaining of discrimination against his black tenant. Jackson v. Birmingham Board of Education elaborated on that holding in the context of sex discrimination. "Retaliation against a person because [he] has complained of sex discrimination," the Court found it inescapably evident, "is another form of intentional sex discrimination." 544 U.S., at 173, 125 S.Ct. 1497. As the Court explained:
Jackson interpreted Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681(a). Noting that the legislation followed three years after Sullivan, the Court found it "not only appropriate but also realistic to presume that Congress
Gómez-Pérez v. Potter, 553 U.S. 474, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008), was similarly reasoned. The Court there held that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 633a(a), barring discrimination "based on age," also proscribes retaliation. 553 U.S., at 479-491, 128 S.Ct. 1931. "What Jackson said about the relationship between Sullivan and the enactment of Title IX," the Court observed, "can be said as well about the relationship between Sullivan and the enactment of the ADEA's federal-sector provision." Id., at 485, 128 S.Ct. 1931. See also CBOCS West, Inc. v. Humphries, 553 U.S. 442, 447-457, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008) (retaliation for race discrimination constitutes discrimination based on race under 42 U.S.C. § 1981). There is no sound reason in this case to stray from the decisions in Sullivan, Jackson, Gómez-Pérez, and CBOCS West.
The Title VII provision key here, § 2000e-2(m), states that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." Section 2000e-2(m) was enacted as part of the Civil Rights Act of 1991, which amended Title VII, along with other federal antidiscrimination statutes. See 105 Stat. 1071. The amendments were intended to provide "additional protections against unlawful discrimination in employment," id., § 2(3), and to "respon[d] to a number of ... decisions by [this Court] that sharply cut back on the scope and effectiveness" of antidiscrimination laws, H.R.Rep. No. 102-40, pt. II, pp. 2-4 (1991) (hereinafter House Report Part II) (citing, inter alia, Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989); Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989)).
Among the decisions found inadequately protective was Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). A plurality of the Court in that case held that the words "because of" in § 2000e-2(a) encompass claims challenging an employment decision attributable to "mixed motives," i.e., one motivated by both legitimate and illegitimate factors. See id., at 240-242, 109 S.Ct. 1775.
Superseding Price Waterhouse in part, Congress sought to "restore" the rule of decision followed by several Circuits that any discrimination "actually shown to play a role in a contested employment decision may be the subject of liability." House Report Part II, at 18. See also House Report Part I, at 48. To that end, Congress enacted § 2000e-2(m) and § 2000e-5(g)(2)(B). The latter provides that an employer's proof that an adverse employment action would have been taken in any event does not shield the employer from liability; such proof, however, limits the plaintiff's remedies to declaratory or injunctive relief, attorney's fees, and costs.
Critically, the rule Congress intended to "restore" was not limited to substantive discrimination. As the House Report explained, "the Committee endors[ed] ... the decisional law" in Bibbs v. Block, 778 F.2d 1318 (C.A.8 1985) (en banc), which held that a violation of Title VII is established when the trier of fact determines that "an unlawful motive played some part in the employment decision or decisional process." Id., at 1323; see House Report Part I, at 48. Prior to the 1991 Civil Rights Act, Bibbs had been applied to retaliation claims. See, e.g., Johnson v. Legal Servs. of Arkansas, Inc., 813 F.2d 893, 900 (C.A.8 1987) ("Should the court find that retaliation played some invidious part in the [plaintiff's] termination, a violation of Title VII will be established under Bibbs."). See also EEOC v. General Lines, Inc., 865 F.2d 1555, 1560 (C.A.10 1989).
There is scant reason to think that, despite Congress' aim to "restore and strengthen ... laws that ban discrimination in employment," House Report Part II, at 2, Congress meant to exclude retaliation claims from the newly enacted "motivating factor" provision. Section 2000e-2(m) provides that an "unlawful employment practice is established" when the plaintiff shows that a protected characteristic was a factor driving "any employment practice." Title VII, in § 2000e-3(a), explicitly denominates retaliation, like status-based discrimination, an "unlawful employment practice." Because "any employment practice" necessarily encompasses practices prohibited under § 2000e-3(a), § 2000e-2(m), by its plain terms, covers retaliation.
Notably, when it enacted § 2000e-2(m), Congress did not tie the new provision specifically to §§ 2000e-2(a)-(d), which proscribe discrimination "because of" race, color, religion, gender, or national origin. Rather, Congress added an entirely new provision to codify the causation standard, one encompassing "any employment practice." § 2000e-2(m).
Also telling, § 2000e-2(m) is not limited to situations in which the complainant's race, color, religion, sex, or national origin
From the inception of § 2000e-2(m), the agency entrusted with interpretation of Title VII and superintendence of the Act's administration, the EEOC, see § 2000e-5, has understood the provision to cover retaliation claims. Shortly after Congress amended Title VII to include the motivating-factor provision, the EEOC issued guidance advising that, "[a]lthough [§ 2000e-2(m)] does not specify retaliation as a basis for finding liability whenever it is a motivating factor for an action, neither does it suggest any basis for deviating from the Commission's long-standing rule that it will find liability ... whenever retaliation plays any role in an employment decision." EEOC, Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, p. 20, n. 14 (July 14, 1992) (hereinafter EEOC Guidance), available at http://www.eeoc.gov/policy/docs/disparat.html (as visited June 21, 2013, and in Clerk of Court's case file). As the EEOC's initial guidance explained, "if retaliation were to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination." Ibid.
In its compliance manual, the EEOC elaborated on its conclusion that "[§ 2000e-2(m)] applies to retaliation." 2 EEOC Compliance Manual § 8-II(E)(1), p. 614:0008, n. 45 (May 20, 1998) (hereinafter EEOC Compliance Manual). That reading, the agency observed, tracked the view, widely held by courts, "that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation." Ibid. "[A]n interpretation of [§ 2000e-2(m)] that permit[ted] proven retaliation to go unpunished," the EEOC noted, would "undermin[e] the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism." Ibid.
The position set out in the EEOC's guidance and compliance manual merits respect. See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 S.Ct. 124 (1944); Federal Express Corp. v. Holowecki, 552 U.S. 389, 399, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) ("[EEOC's] policy statements, embodied in its compliance manual and internal directives ... reflect a body of experience and informed judgment.... As such, they are entitled to a measure of respect under the less deferential Skidmore standard." (internal quotation marks omitted)). If the breadth of § 2000e-2(m) can be deemed ambiguous (although I believe its meaning is plain), the provision should be construed to accord with the EEOC's well-reasoned and longstanding guidance.
The Court draws the opposite conclusion, ruling that retaliation falls outside
The Court first asserts that reading § 2000e-2(m) to encompass claims for retaliation "is inconsistent with the provision's plain language." Ante, at 2524. The Court acknowledges, however, that "the text of the motivating-factor provision... begins by referring to unlawful employment practices," a term that undeniably includes retaliation. Ibid. (internal quotation marks omitted). Nevermind that, the Court continues, for § 2000e-2(m) goes on to reference as "motivating factor[s]" only "race, color, religion, sex, or national origin." The Court thus sees retaliation as a protected activity entirely discrete from status-based discrimination. Ibid.
This vision of retaliation as a separate concept runs up against precedent. See supra, at 2525-2526. Until today, the Court has been clear eyed on just what retaliation is: a manifestation of status-based discrimination. As Jackson explained in the context of sex discrimination, "retaliation is discrimination `on the basis of sex' because it is an intentional response to the nature of the complaint: an allegation of sex discrimination." 544 U.S., at 174, 125 S.Ct. 1497.
The Court does not take issue with Jackson's insight. Instead, it distinguishes Jackson and like cases on the ground that they concerned laws in which "Congress' treatment of the subject of prohibited discrimination was both broad and brief." Ante, at 2530. Title VII, by contrast, "is a detailed statutory scheme," that "enumerates specific unlawful employment practices," "defines key terms," and "exempts certain types of employers." Ante, at 2530. Accordingly, the Court says, "it would be improper to indulge [the] suggestion that Congress meant to incorporate [in Title VII] the default rules that apply only when Congress writes a broad and undifferentiated statute." Ibid.
It is strange logic indeed to conclude that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation. It is hardly surprising, then, that our jurisprudence does not support the Court's conclusion. In Gómez-Pérez, the Court construed the federal-sector provision of the ADEA, which proscribes "discrimination based on age," 29 U.S.C. § 633a(a), to bar retaliation. The Court did so mindful that another part of the Act, the provision applicable to private-sector employees, explicitly proscribes retaliation and, moreover, "set[s] out a specific list of forbidden employer practices." Gómez-Pérez, 553 U.S., at 486-487, 128 S.Ct. 1931 (citing 29 U.S.C. §§ 623(a) and (d)).
The Court suggests that "the la[w] at issue in ... Gómez-Pérez [was a] broad, general ba[r] on discrimination." Ante, at 2530. But, as our opinion in that case observes, some of the ADEA's provisions are brief, broad, and general, while others are extensive, specific, and detailed. 553 U.S., at 487, 128 S.Ct. 1931. So too of Title VII. See ibid. ("The ADEA federal-sector provision was patterned directly after Title VII's federal-sector discrimination ban ... [which] contains a broad prohibition of `discrimination,' rather than a
The Court's reliance on § 109(b) of the Civil Rights Act of 1991, 105 Stat. 1077,
This argument is underwhelming. Yes, Congress has sometimes addressed retaliation explicitly in antidiscrimination statutes. When it does so, there is no occasion for interpretation. But when Congress simply targets discrimination "because of" protected characteristics, or, as in § 2000e-2(m), refers to employment practices motivated by race, color, religion, sex, or national origin, how should courts comprehend those phrases? They should read them informed by this Court's consistent holdings that such phrases draw in retaliation, for, in truth, retaliation is a "form of intentional [status-based] discrimination." See Jackson, 544 U.S., at 173, 125 S.Ct. 1497, described supra, at 2525-2526. That is why the Court can point to no prior instance in which an antidiscrimination law was found not to cover retaliation. The Court's volte-face is particularly imprudent in the context of § 2000e-2(m), a provision added as part of Congress' effort to toughen protections against workplace discrimination.
The Court also disassociates retaliation from status-based discrimination by stressing that the bar on the latter appears in § 2000e-2, while the proscription of retaliation
The Court's reasoning rests on a false premise. Section 2000e-2 does not deal exclusively with discrimination based on protected characteristics. The provisions stated after §§ 2000e-2(a)-(d) deal with a variety of matters, some of them unquestionably covering retaliation. For example, § 2000e-2(n), enacted in tandem with and located immediately after § 2000e-2(m), limits opportunities to collaterally attack employment practices installed to implement a consent judgment. Section 2000e-2(n) applies beyond the substantive antidiscrimination provisions in § 2000e-2; indeed, it applies beyond Title VII to encompass claims "under the Constitution or [other] Federal civil rights laws." § 2000e-2(n)(1)(A). Thus, if an employee sues for retaliatory discharge in violation of § 2000e-3(a), and a consent judgment orders reinstatement, any person adversely affected by that judgment (e.g., an employee who loses seniority as a result) would generally be barred from attacking the judgment if she was given actual notice of the proposed order and a reasonable opportunity to present objections. That Congress placed the consent-judgment provision in § 2000e-2 and not in § 2000e-3 is of no moment. As the text of the provision plainly conveys, § 2000e-2(n) would reach consent judgments settling complaints about retaliation, just as it would cover consent judgments settling complaints about status-based discrimination.
Section 2000e-2(g) is similarly illustrative. Under that provision, "it shall not be an unlawful employment practice for an employer ... to discharge [an] individual" if she fails to fulfill any requirement imposed in the interest of national security. Because § 2000e-3(a) renders retaliation an "unlawful employment practice," § 2000e-2(g)'s exemption would no doubt apply to a Title VII retaliatory discharge claim. Given these provisions, Congress' placement of the motivating-factor provision within § 2000e-2 cannot bear the weight the Court places on it.
The Court gives no deference to the EEOC's longstanding position that § 2000e-2(m) applies to retaliation because, the Court charges, the agency did not "address the particular interplay among the status-based antidiscrimination provision (§ 2000e-2(a)), the antiretaliation provision (§ 2000e-3(a)), and the motivating-factor provision (§ 2000e-2(m))." Ante, at 2533. Not so.
In its compliance manual, the EEOC noted that some courts had concluded that § 2000e-2(m) does not cover retaliation, citing as an example Woodson v. Scott
While Woodson rejected that argument, the EEOC found it sound. See EEOC Compliance Manual, at 614:0008, n. 45 ("Courts have long held that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation."). See also EEOC Guidance, at 20, n. 14 (while § 2000e-2(m) does not explicitly refer to retaliation, nothing in the provision calls for deviation from the longstanding practice of finding liability when a plaintiff demonstrates that retaliatory intent motivated an adverse employment decision). By adverting to Woodson, the EEOC made clear that it considered the very argument the Court relies on today. Putting down the agency's appraisal as "generic," ante, at 2533, is thus conspicuously unfair comment.
The Court's second reason for refusing to accord deference to the EEOC fares no better. The EEOC's conclusion that "the lessened causation standard is necessary in order to prevent `proven retaliation' from `go[ing] unpunished,'" the Court reasons, "is circular" because it "assumes the answer to the central question at issue here, which is what causal relationship must be shown in order to prove retaliation." Ibid. That reasoning will not wash. Under the motivating-factor test set out in § 2000e-2(m), a plaintiff prevails if she shows that proscribed conduct "was a motivating factor" for the adverse employment action she encountered, "even though other factors also motivated the [action]." She will succeed, although the relief to which she is entitled may be restricted. See supra, at 2526. Under the Court's view, proof that retaliation was a factor motivating an adverse employment action is insufficient to establish liability under § 2000e-3(a). The Court's but-for causation standard does not mean that the plaintiff has failed to prove she was subjected to unlawful retaliation. It does mean, however, that proof of a retaliatory motive alone yields no victory for the plaintiff. Put otherwise, the Court's view "permits proven retaliation to go unpunished," just as the EEOC recognized. See EEOC Compliance Manual, at 614:0008, n. 45.
Having narrowed § 2000e-2(m) to exclude retaliation claims, the Court turns to Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), to answer the question presented: Whether a plaintiff must demonstrate but-for causation to establish liability under § 2000e-3(a).
The Court held in Gross that, in contrast to Title VII, § 623(a) of the ADEA does not authorize any age discrimination claim asserting mixed motives. Explaining that uniform interpretation of the two statutes is sometimes unwarranted, the Court noted in Gross that the phrase "because of... age" in § 623(a) has not been read "to bar discrimination against people of all ages, even though the Court had previously interpreted `because of ... race [or] sex' in Title VII to bar discrimination against people of all races and both sexes." 557 U.S., at 175, n. 2, 129 S.Ct. 2343. Yet Gross, which took pains to distinguish
The word "because" in Title VII's retaliation provision, § 2000e-3(a), the Court tells us, should be interpreted not to accord with the interpretation of that same word in the companion status-based discrimination provision of Title VII, § 2000e-2(a). Instead, statutory lines should be crossed: The meaning of "because" in Title VII's retaliation provision should be read to mean just what the Court held "because" means for ADEA-liability purposes. But see Gross, 557 U.S., at 174, 129 S.Ct. 2343 ("When conducting statutory interpretation, we `must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.'" (quoting Holowecki, 552 U.S., at 393, 128 S.Ct. 1147)). In other words, the employer prevailed in Gross because, according to the Court, the ADEA's antidiscrimination prescription is not like Title VII's. But the employer prevails again in Nassar's case, for there is no "meaningful textual difference," ante, at 2528, between the ADEA's use of "because" and the use of the same word in Title VII's retaliation provision. What sense can one make of this other than "heads the employer wins, tails the employee loses"?
It is a standard principle of statutory interpretation that identical phrases appearing in the same statute — here, Title VII — ordinarily bear a consistent meaning. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007). Following that principle, Title VII's retaliation provision, like its status-based discrimination provision, would permit mixed-motive claims, and the same causation standard would apply to both provisions.
The Court's decision to construe § 2000e-3(a) to require but-for causation in line with Gross is even more confounding in light of Price Waterhouse. Recall that Price Waterhouse interpreted "because of" in § 2000e-2(a) to permit mixed-motive claims. See supra, at 2526. The Court today rejects the proposition that, if § 2000e-2(m) does not cover retaliation, such claims are governed by Price Waterhouse's burden-shifting framework, i.e., if the plaintiff shows that discrimination was a motivating factor in an adverse employment action, the defendant may escape liability only by showing it would have taken the same action had there been no illegitimate motive. It is wrong to revert to Price Waterhouse, the Court says, because the 1991 Civil Rights Act's amendments to Title VII abrogated that decision.
This conclusion defies logic. Before the 1991 amendments, several courts had applied Price Waterhouse's burden-shifting framework to retaliation claims.
The Court shows little regard for trial judges who must instruct juries in Title VII cases in which plaintiffs allege both status-based discrimination and retaliation. Nor is the Court concerned about the capacity of jurors to follow instructions conforming to today's decision. Causation is a complicated concept to convey to juries in the best of circumstances. Asking jurors to determine liability based on different standards in a single case is virtually certain to sow confusion. That would be tolerable if the governing statute required double standards, but here, for the reasons already stated, it does not.
The Court's assertion that the but-for cause requirement it adopts necessarily follows from § 2000e-3(a)'s use of the word "because" fails to convince. Contrary to the Court's suggestion, see ante, at 2524, the word "because" does not inevitably demand but-for causation to the exclusion of all other causation formulations. When more than one factor contributes to a plaintiff's injury, but-for causation is problematic. See, e.g., 1 Restatement (Third) of Torts § 27, Comment a, p. 385 (2005) (noting near universal agreement that the but-for standard is inappropriate when multiple sufficient causes exist) (hereinafter Restatement Third); Restatement of Torts § 9, Comment b, p. 18 (1934) (legal cause is a cause that is a "substantial factor in bringing about the harm").
When an event is "overdetermined," i.e., when two forces create an injury each alone would be sufficient to cause, modern tort law permits the plaintiff to prevail upon showing that either sufficient condition created the harm. Restatement Third § 27, at 376-377. In contrast, under the Court's approach (which it erroneously calls "textbook tort law," ante, at 2525), a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors. Ante, at 2521-2522.
Today's opinion rehashes arguments rightly rejected in Price Waterhouse. Concurring in the judgment in that case, Justice O'Connor recognized the disconnect between the standard the dissent advocated, which would have imposed on the plaintiff the burden of showing but-for causation, see 490 U.S., at 282, 286-287, 109 S.Ct. 1775 (KENNEDY, J., dissenting), and the common-law doctrines on which the dissent relied. As Justice O'Connor explained:
Justice Brennan's plurality opinion was even less solicitous of the dissent's approach. Noting that, under the standard embraced by the dissent in Price Waterhouse, neither of two sufficient forces would constitute cause even if either one alone would have led to the injury, the plurality remarked: "We need not leave our common sense at the doorstep when we interpret a statute." 490 U.S., at 241, 109 S.Ct. 1775.
As the plurality and concurring opinions in Price Waterhouse indicate, a strict but-for test is particularly ill suited to employment discrimination cases. Even if the test is appropriate in some tort contexts, "it is an entirely different matter to determine a `but-for' relation when ... consider[ing], not physical forces, but the mind-related characteristics that constitute motive." Gross, 557 U.S., at 190, 129 S.Ct. 2343 (BREYER, J., dissenting). When assessing an employer's multiple motives, "to apply `but-for' causation is to engage in a hypothetical inquiry about what would have happened if the employer's thoughts and other circumstances had been different." Id., at 191, 129 S.Ct. 2343. See also Price Waterhouse, 490 U.S., at 264, 109 S.Ct. 1775 (opinion of O'Connor, J.) ("`[A]t... times the [but-for] test demands the impossible. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs.'" (quoting Malone, Ruminations on Cause-In-Fact, 9 Stan. L.Rev. 60, 67 (1956))).
This point, lost on the Court, was not lost on Congress. When Title VII was enacted, Congress considered and rejected an amendment that would have placed the word "solely" before "because of [the complainant's] race, color, religion, sex, or national origin." See 110 Cong. Rec. 2728, 13837-13838 (1964). Senator Case, a prime sponsor of Title VII, commented that a "sole cause" standard would render the Act "totally nugatory." Id., at 13837. Life does not shape up that way, the Senator suggested, commenting "[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of." Ibid.
The Court holds, at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination, that § 2000e-2(m) excludes retaliation claims. It then reaches outside of Title VII to arrive at an interpretation of "because" that lacks sensitivity to the realities of life at work. In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. Indeed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. See ante, at 2521-2522. Congress had no such goal in mind when it added § 2000e-2(m) to Title VII. See House Report Part II, at 2. Today's misguided judgment, along with the judgment in Vance v. Ball State Univ., post, p. 1, should prompt yet another Civil Rights Restoration Act.
For the reasons stated, I would affirm the judgment of the Fifth Circuit.
