B. The 1991 Amendment – Revisited
However, Kenney’s analysis is inherently flawed. Regardless of if Pricecontrolled all of Title VII at the time of decision, Congress’s actions during the 1991 amendment is ultimately controlling. There are several items of note concerning the 1991 amendment. First, Congress only added the motivating factors to the discrimination portion of the statute. Second, Congress enumerated the motivating factors, adding additional factors, and excluding other possible factors. Third, Congress changed the text of the statute to explicitly allow for remedies even when a defendant carries its burden of proof. Finally, as the Court in Grossnoted, it is important to recognize that Congress changed all the relevant sections at the time of the amendment. [i]
Congress was explicit in which parts of Price it codified. When the actions of the amendment are viewed together, it is apparent that Congress was intentional in its actions. Not only did Congress fail to add the text to the ADEA, but it also chose not to add it to every other section of Title VII. Kenny makes the point that legislative inaction should not have the same legislative effect as affirmative action.[ii]However, when Congress amended Title VII, it was not through inaction but action. And with the same action that codified the motivating factors for discrimination, Congress excluded them from retaliation actions. Congress does not list out every possible item not included in a statute; this would make it impossible to complete the first list, much less a list for every section of the code.
Even if one suspects that by adding the motivating factors to the discrimination section of Title VII, it should control all of Title VII, then there is also the issue of how Congress chose to codify the scheme – by enumerating the motivating factors that would trigger the shifting burden. Price held “that [when] a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision,” she may shift the burden to the defendant to prove the decision would be the same without the same motivating factor.[iii]Congress changed the motivating factors to include race, color, religion, and national origin, not just gender.[iv]The amount of change by Congress to Price’sholding goes beyond merely codifying existing common law, instead Congress started with the idea in Price, and then implemented its own idea. Whatever the Court may have intended in Price, it now must be viewed through the amended Statute.
Similarly, Congress changed the results for the defendant who is able to disprove the but-for causation. In Price, this would have been a full defense,[v]however, Congress still provides limited remedies for the plaintiff, including declaratory relief, limited injunctive relief, and fees and costs.[vi]Unlike before, where Congress modified and expanded on the idea in Price, Congress explicitly overruled the Court, disallowing the complete defense. However, in both modifications, it is clear that while Congress started with the ruling in Price, it did not limit itself to just Price, nor regarded Priceas the current law.
When these actions by Congress are examined without context, it is still hard to determine if the scheme developed in Price survives enough to influence the rest of Title VII. When viewed in the context of the full amendment, however, it is clear that Congress was specific on what was amended and what was not. While Congress amended Title VII’s discrimination and retaliation provisions, as well as the ADEA, it only added the motivating factors to the discrimination statute. It left the factors out of the retaliation section[vii]and the ADEA. [viii]With this context, it becomes apparent Congress’s changes to the Price holding – including a different set of factors, and a limited defense – also extend to limiting the newly enacted factors to just discrimination, and not all of Title VII.
While Kenny is correct that both retaliation and discrimination share the same legislative history, that alone is not enough to assume that Congress intended to apply the motivating factors to all of Title VII. Even with the common history, the courts have treated these the two sections differently, with different scopes and burdens of proof. As the Hayes court noted, both discrimination and retaliation cases require similar elements to prove a prima facie case.[ix]The context of an adverse action in a retaliation case, however, is broader than it is in a discrimination case, including harms not related to employment or the workforce.[x]Due to this broad context, courts have generally interpreted retaliation as having “an added measure of rigor.”[xi]Congress not only left this differentiation in place, but it built on it. In discrimination claims, it reduced the burden of proof further for a plaintiff, while leaving it as-is in a retaliation claim.
While Smithand Hayes both questioned if Gross had overruled or displaced Price, the question neither court asked, nor answered, was if Price is still relevant after Congress’s amendment. Both courts looked to the analysis in Gross. Smith examined and then rejected it, because the Supreme Court had not overruled Price, and it refused to do so itself.[xii]However, if Congress’s changes had been seen as invalidating Price, then whether the Gross Court overruled Price or not would be irrelevant. Hayes on the other hand, determined that while Gross did not explicitly overrule Price, Gross did prove that Pricewas incorrectly decided, and Pricehad been limited to just discrimination claims by Congress.[xiii]However, this is only partly correct. After the 1991 Act, Price does not even apply to discrimination claims directly. Price may have laid the foundation for the 1991 Act, but Congress built the house.
[i] Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2349 (2009).
[ii] Kenny, supra note 14, ** at 1050.
[iii] Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).
[iv] 42 U.S.C.A. § 2000e-2(m) (YEAR).
[v] Price Waterhouse, 490 U.S. at 258.
[vi] Gross, 129 S. Ct. at 2349. Noting the amended statute § 2000e-5(g)(2)(B) restricts the remedies available to a plaintiff proving a motivating factor.
[vii] Hayes v. Sebelius, 762 F. Supp. 2d 90, 113 (D.D.C. 2011).
[ix] Id. at 99.
[x] Id. at 100. Quoting Franklin v. Potter, 600 F. Supp. 2d 38, 66 (D.D.C. 2009).
[xi] Id. Quoting Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997).
[xii] Smith v. Xerox Corp., 602 F.3d 320, 329 (5th Cir. 2010).
[xiii] Hayes, 762 F. Supp. at 115.