B. Legislation Change
In the wake of Price, Congress amended both Title VII,[i] in part to codify the burden-shifting scheme introduced in Price,[ii] as well as the Age Discrimination in Employment Act (ADEA).[iii] However, where Congress codified Price in Title VII, it failed to change the ADEA.[iv]The relevant addition to Title VII centers around the discrimination provision: “[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”[v]Congress also amended Title VII to provide limited remedies for the plaintiff, even if the defendant could carry its burden of proof.[vi]Similarly, Congress did not just codify the Price standard*,* but enumerated and expanded on the motivating factors that would trigger a mix-motive finding.[vii]
C. Gross V. FBL Financial Services, Inc.
In Gross, the Court found itself determining the scope of the scheme it had established in Price.[viii]The claim in this case was not under Title VII, but instead, a claim under the ADEA.[ix]For the Court, this proved to be the deciding factor if Price would apply.[x]While the language between the two statutes appeared identical, the Court warned against using the same conclusion without completing “a careful and critical examination.”[xi]Even though the language was identical and the legislative history was similar, when Congress amended Title VII to enumerate the motivating factors, it declined to do so in the ADEA. This caused the Court to refuse to extend the Price burden-shifting scheme to the ADEA.[xii]If Congress had intended for the ADEA to have the same scheme, then it would have amended it to have the same language.[xiii]Without the additional language, the plaintiff has the burden of proving that the factor was the but-for cause of the action.[xiv]
[i] Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2349 (2009).
[ii] Andrew Kenny, Comment, The Meaning of “Because” in Employment Discrimination Law: Causation in Title VII Retaliation Cases After Gross, 78 U. Chi. L. Rev.1031, 1036 (2011).
[iii] Gross, 129 S. Ct. at 2349.
[v] 42 U.S.C.A. § 2000e-2(m) (YEAR).
[vi] Kenny, supra note 14, at 1036.
[vii] § 2000e-2(m).
[viii] Gross, 129 S. Ct. at 2346.
[x] Id. at 2349.
[xiv] Id. at 2352.