III.   Proposal

            As the debate over if Price’s burden shifting scheme and motivating factors can and should be applied to retaliation claims after Gross continues, the right question must be asked before the right answer can be determined. The courts in Smith and Hayes, both struggled to understand how Gross and Pricecoexisted. Kenny tired to prove that, at the time, Price controlled all of Title VII, and nothing has occurred since that time to change Price’s domain. Gross even stated that Price was not overruled. However, by the time Gross, Smith, or Hayes addressed the scope of Price, Price was no longer good law. During its amendment of Title VII, Congress did everything but hang a sign stating that Price was no longer relevant. Gross did not overrule Price, because Gross did not have to, Congress had already accomplished this for the Court.

            The question remains: should a retaliation claim be allowed a mixed-motive jury instruction. Gross provides the framework for the analysis of when a mixed-motive instruction should be allowed, but the work has already been done in both Smith and Hayes. While Smith eventually came to the wrong conclusion, the analysis under the Gross framework is reasonable. Hayes used a similar analysis, and agreed with Smith on much of its analysis, but strongly disagreed with the conclusion. Hayes looked to Congress’s careful tailoring of the motivating factor claim, and found it lacking in the retaliation section as well as in the ADEA.[i]It also found this exclusion to be telling, due to active amendments to both the retaliation sections and the ADEA at the same time.[ii]

            Currently, Price is no longer controlling for any section of Title VII. For discrimination claims, one must look to what Congress enacted during the 1991 amendment. For other claims including retaliation claims, one has to look to Gross to determine if a mixed-motive instruction should be provided to the jury.****


            The history of Title VII provides plenty of reasons for the current indecision in the courts concerning how to treat retaliation claims. The misplaced focus on Price has compounded the problem, leaving relics of the past as landmines for those trying to navigate through the existing law. By changing the focus to Congress’s amendment of the statute in 1991, at least some of the distractions are cleared away. This amendment changed not only Title VII, but the scope and effect of the scheme set forth in Price. With that change, Congress codified parts of Price, but more importantly, Congress also limited the codification of Priceto only discrimination claims. The Supreme Court in Gross provided the foundation and analysis for similar claims, such as age discrimination. Applying the same analysis to retaliation claims, a similar conclusion is achieved – the Pricescheme, shifting the burden to the defendant once a motivating factor has been proven, does not apply in retaliation claims.

[i]           Id. at 113.

[ii]           *Id.*