State of Texas v. EEOC et al

Filing 25

RESPONSE filed by State of Texas re: 15 MOTION to Dismiss (Attachments: # 1 Exhibit(s) Vance v. Ball State, # 2 Exhibit(s) UT v. Nassar) (Mitchell, Jonathan)

EXHIBIT B

Arnçri,ç,an Es
Hflñ¡1rlr.ËÉ

f

A ã,Ée,€latiE

premetouttprgrylewro,lg

No. 12-484

lln

tlse

Suprem¿ @ourt

ú tlst @nítù Ststes

Uxrvnnsrry oF Tpx¡s SourswpsrnRN Mpucel
CnNrnR, PETITIoNER
a.

NRInI NÆsAR

ONWRIT OF CERTIONARI
TO THE UNITED STATDS COURT OF APPEALS
FORTHE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
ST]PPORTING RESPONDENT

DoNer,o B. Vnnnrr,r,r, Jn.
Solicitor General
Counsel of Record,

Tsou¡s E. Pnnnz
As sistant

Attorn ey General

Snr SnrNrveseN
D eputg S olicitor
P.

D¡vro Lopnz

General Counsel
C¡nor,v¡t L.'WtrnBlnn
Acting A s s o ciat e G ener al
Counsel
Gerr, S. Cor,nu¡¡l

n

G

eneral

MnusseAnnus Snnnny
Assistant to the Solicitor
General
DTNNTS J. DIMSEY

Tovas R. C¡lonnoN
Attomegs
Department of Justice
Washingtog D.C. 205 30-000 1
CtBri,eß@usdoj.gou
-2217

QUESTION PRESENTED

Whether Title

VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e et seq., authorizes a mixed-motive standard for retaliation claims.

(r)

TABLD OF CONTENTS
Page

Interest of the United States
Statutory provisions involved

1

2
2

Statement.
't
Summarry of argument .................
Argument:
The 1991 amendments authorize a mixed-motive
..........10
standard for Title VII retaliation claims
Title VII's "motivating factor" provision applies
A.
11
directly to retaliation claims.
B. Applying the "motivating factor" provision to
retaliation claims best effectuates congressional
24
intent.........
C. The EEOC's longstanding interpretation is
reasonable and entitled to deference ......................... 28
D. Because the 1991 amendments authorize a
mixed-motive standard for Title VII retaliation
30
claims, Gross does not control.......
33
Conclusion
ta
Statutory provisions
Appendix

-

TABLE OF AUTHORITIES
Cases:

Bibbs v. Block, 778 F .2d 1318 (8th Cir. 1985) ........,.............26
Borgov. Goldin,204 F.3d 251 (D.C. Cir.2000) ..........,........22
Burlington N. & Santa Fe Ry. Co.v.Wluite,
...............7,27,32
54S U.S.53
Carterv. Luminant Power Sertts. Co., No. 12-10642,
......23,24,
2013 S/L 1337365 (Apr. 3, 2013)

(2006)

.........

CBOCS W., Inc. v. Humphries,553 U.S. 442

(2008)

..................8,14,16,20,24,26
Crawford,v. Metropolitan Goa't of Nashuille &
.27
Da,aidson Cnty.,555 U.S. 27L (2009)

(III)

w
Cases-Continued:

Page

Cruz- P acker v. Chertoff, 612 F . Supp. 2d 67 (D.D.C.
2009)

18

Desert Palace, Inc. v. Costa,539 U.S. 90 (2003)............23,25

EEOC v. General Lines, [nc.,865 F.zd 1555
(10rh ctu.
....................26
Fed,erq,l Erpress Corp. v. Holowecki,552 U.S. 389
29,30

1989)..........

(2008)

Gomez-Perez v. Potter, 553 U.S. 474

(2008)

....8,13, L4,16,21

Grossv. FBL Fin. Ser'us., 1nc.,557 U.S. 167
................passim
Jachsonv. Biwningham Bd,. of Ud,uc.,544 U.S. 167
..................8, L2, \3, 14,75,27
Legal Serts. of Ark., Inc.,8I3 F.2d 893
Johnsonv.
(8rh ctu.
......................26
P Lostic s C otp.,
Kasten v . S uint- G ob ain P erformance
...............9,30
131 S. Cr. 1325
Kubicko v. Ogd,en Logistics Serus.,181 F.3d 544
(4th Cir.
......................23
Landgraf v. USI FiIm Prod,s.,511 U.S.244
................3,20,27
.............2L
Lindhv. Murphy,521 U.S.320
McNuttv. Board, of Trs. of the Uni,u. of 111.,141 F.3d
................,23,26
706 (7th Cir.
MaantHealthy Citg Sch. Dist. Bd,. of Ed,uc.v.Doyle,
.......................31
429 U.S. 274
NLRB v. Transportat;ion Mgmt. Corp.,462 U.S. 393

(2009)
(2005)

1e87)..........
(2011)

1999)..........

(1994)

(1997)

1998)..

(t977)

(1983)

......31

Pattersonv. McLea,n Cred,it Union,491 U.S. 164

(1989)

Porterv. Natsios,414 F.3d

......19
13 (D.C.

Cir. 2005).......,,..........22

V

Cases-Continued:
Powereæ Corp. v.
551 U.S. 224

Page

Reliant Energg

(2007)

Serus., Inc.,

.......................32

Price W aterhouse v . H opkins, 490 U. S. 228 989) ..........2, I
Robinsonv. Shell OiI Co.,519 U.S. 337 (199?) ..............22,30
-R oss v. C ommunication s S o,te\Iite C orp., 7 59 î .2d
.......................26
355 (4rh Ctu. 1985)..
(5th Cir. 2010) ..........6,7
Smithv. Xeron Corp.,602 F.3d 320
Sulliuanv. Little Hunting Parh 1nc,396 U.S.229
..8,L2
(1969)
Ct.
Tltompsonv. NorthAm, Stainless, LP,73L S.
.........7,29,30
863 (2011)
(D.C. Cir. 1980),
Willio.msv. Boorstin, 663 F.zd 109
...................26
cert. denied,451 U.S. 985 (1981)..
Woodsonv. Scott Paper Co., 109 F.3d 913
(3d Ctu.), cert. denied, 522U.5. 914 (1997)..................23, 26
Zand,ersv. National R.R. Passenger Corp.,
,26
898 F.2d rt27 (6Lh Cir. 1990)
(1

Statutes:
Age Discrimination in Emplo¡rment Act of 1967,
...................4, 10, 13
29 U.S.C. 627 et seq.
......................4
29 U.S.C.

............
623(aX1)
29 U.S.C.633a(a)

Civil Rights Act of 1964, Pub. L. No.88-352,
78Stat.24I:
$ 706(g), 78 Stat. 261
Title VII, 42 U.S.C. 2000e et
42 U.S.C. 2000e-2.

seq.

..,....................13

20
................L2
....8, 18, 19

42 U.S.C.2000e-2(aX1)

15

42 U.S. C. 2000e-2(a)(2)

15

VI

42 U.S.C. 2000e-2(cX1)

15

42 U.S.C. 2000e-2(c)(2)

15

42 U.S.C.2000e-2(d)

15

42 U.S.C.2000e-2(g)

18

42 U.S.C. 2000e-5(b)-(d)
42 U.S.C.2000e-5(f)

qq
q.)

2t
22

42 U.S.C. 2000e-5(g)(2)(A)

20

42 U.S.C. 2000e-5(gX2XB)

9, 11, 27

22
42 U.S.C. 2000e-16 (2006 & Supp.V 2011).................1

Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071

3

VII
Page

Statutes-Continued:
$ 107(b), 105 Stat. t075 (42 U.S.C.

,.4

2000e-5(Ð(2)(B))

t7

$ 108, 105 Stat. 1076

EducationAmendments of 1972,20 U.S.C. 1681
72

et seq.
38 U.S.C.4311

22

42 U.S.C. 1981

....16

8,19

Miscellaneous:

EEOC Com,plionce Manual (May 20' 1998),
.28,29
http //www. e e o c. gov/p olicy/d o cs/retal.
Effect of Desert Pøla,ce, Inc. a. Costoo 539 U.S. 90
(2003), on Reuisød Enforcement Quidonce on Recent Deuel,opments in Disparate Treatm'ent Theory
(JulU 1ú, 1992) (as amended Jan. 16,2009)'
http//www.eeoc. gov/policy/docs/disparat.html ................29
Enforcement Guid,ance on Recent Deuelopments i'n
D isp wate Tre atm,ent Theory (July 14, 1992), 1992
2

wL

1364355.................

H.R. Rep. No.40, 102d Cong., lst
Pt.

1...........
Pt.2...........

..................28

Sess. (1991):

'20,26,26
..20,?t1,27

llntbe Supreme [,surt of tüe @nitù þtutes
No. 12-484

UNrvsnsrry

SournwnsrERN MnolcAr
CoNtnR, PETITIoNER

oF TEXAS

a.

Neml N¡ss¡,n
ONWRIT OF CERTIOR¿,NI
TO THE UNITED STATES COURT OF ¿,PPE¿I,S
FORTHE FIFTH CINCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES
This case presents the question whether Title VII of
the Civil Rights Act of 1964,42 U.S.C. 2000e et seq.,

a mixed-motive standard for retaliation
claims. The Attorney General enforces Title VII against
public employers,42 U.S.C.2000e-5(Ð(1), and the Equal
Employment Opportunity Commission enforces Title
VII against private employers, 42 U.S.C.2000e-5(a) and
(Ð(1). In addition, Title VII applies to the United States
in its capacity as the Nation's largest employer.
42 U.S.C. 2000e-16 (2006 & Supp. V 2011). The United
States, as the principal enforcer of the federal civil
rights laws and the Nation's largest employer, has
a substantial interest in the proper interpretation of
authorizes

Title VII.
(1)

2
STATUTORY PROYISIONS INVOLVED

Pertinent statutory provisions are set forth in an appendix to this brief. App., infra,la-31a.
SÎATEMENT
1. 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." 42 U.S.C. 2000e-2(a); see also 42 U.S.C.2000ez(b)-(d) (prohibition for employment agencies, labor
organizations, and training programs). Title VII also
makes it an "unlawful employment practice" to discriminate against anyindividual "because" the individual has
complained about, opposed, or participated in a proceeding about, prohibited discrimination. 42 U.S.C. 2000e3(a). This latter form of discrimination is often referred
to as "retaliation," although Title VII does not use that

term.
In P ric e W aterlt ous e v . H opkins, 490 U. S. 228 ( 1 989),
a Title VII gender discrimination case, this Court held
that the words "because of" in Section 2000e-2(a) encompass "mixed-motive" claims, i.ø., elaims challenging
an employment decision motivated by both legitimate
and illegitimate factors. See id. at 240-242 (plurality
opinion); id. at 258-260 (White, J., coneurring in the
j udgment) ; ef . id,. at 262-269 ( O' C onnor, J., concurring in
the judgment) (focusing on burden of persuasion). The
plurality held that a Title VII plaintiff need only show
thal, a prohibited faehor (e.g., an employee's gender)
played a "motivating" part in the employment decision.
Id,. at 244. The plurality also held, however, that an
employer will not be held liable if it proves, bY a preponderance of the evidence, that itwould have made the
same deeision regardless of the illegitimate motive. See

ç)

.)

id,. at 244-245,252-255. Justices White and O'Connor,

separately concurring in the judgment, held that the
illegitimate motive must play a "substantial" part in the
employment decision to satisfy a plaintiff's burden of
proof. Id. at 259 (\4/hit€, J., concuruing in the judgment); id,. at 262,265 (O'Connor, J., concurring in the
judgment). And Justice O'Connor would have required
the plaintiff to present "direct evidence" of the illegitimate factor before shifting the burden to the employer
to show that it would have made the same decision regardless of that factor. Id,. at276.
T\vo years later, Congress enacted the Civil Rights
Act of 1991 (1991 Act), Pub. L. No. 102-166, 105 Stat.
1071. "[I]n large part," the 1991 Act was "a response to
a series of decisions of this Court," and Section 107 in
particular\l/as a direct "respon[se]" to this Court's decision in Pricø Waterhouse. Land,graJ'v. USI Film
Prod,s., 511 U.S. 244,250-251 (1994). Section 107 eodified one aspect of Price Waterhousø by providing a
mixed-motive standard: "Except as otherwise provided
in this title, an unlawful employment practice is established when the complaining party demonstrates that
tace, color, religion, sex, or national origin rwas a motivating factor for any employment practice, even though
other factors also motivated the practice." 1991 Act
$ 107(a), 105 Stat. 1.075 (42 U.S.C. 2000e-2(m)). Section
107, however, abrogated a separate aspect of PriceWaterhouse by declining to codify a complete defense to
liability if the employer demonstrates that it would have
taken the same action in the absence of the impermissible motive. Under the 1991 amendments, such a defense
does not absolve an employer of liability, but instead
restricts the remedies a court may order: declaratory
relief, injunctive relief, attorney's fees and costs, but not

4

damages, reinstatement, or back pay. $ 107(b), 105 Stat.
r075 (42 U.S.C. 2000e-5(gX2XB)).
In 2009, this Court decided Gross v. FBL Financial
Sertsices, Inc., 557 U.S. 167. Gross held that the Age
Discrimination in Employment Act of 1967 (A-DE A),29
U.S.C. 621 et søq., which prohibits discrimination "because of" age,29 U.S.C. 623(a)(1), does not encompass a
mixed-motive standard. 557 U.S. at 173. Unlike under
Title VII, therefore, proof that age played some motivating role in the employer's adverse employment decision
does not suffice to establish liability. Rather, a plaintiff

alleging discrimination under the ADEA must prove
"that age rüas the 'but-for' cause of the employer's adverse decision." Id,. at 176. The Court distinguished the
ADEA from Title VII on the ground that, in 1991, Congress amended Title VII to expressly include "motivating factor" language, but did not similarly amend the
ADEA. See id. at 174. Those amendments, the Court
concluded, make Title VII "materially different lfrom
the ADEAI witn respect to the relevant burden of persuasion." Id,. atl73.
2. Respondentis a doctor of Middle Eastern descent
who was previously employed by petitioner as a member
of the medical school faculty. Pet. App. 2. In that capacity, respondent also served as a clinician at petitioner's affiliated hospital. Ibid. In June 2004, petitioner
hired Dr. Beth Levine to oversee the HIV/AIDS clinic
where respondent worked. Id. at 2-3. Respondent felt
harassed by Dr. Levine, who heavily scrutinized his
productivity and billing practices and made derogatory
comments about "Middle Easterners." Id. at 3 (stating
that "Middle Easterners are lazy," and that they "hired
another one," referring to the hospital's hiring of another doetor of Middle Eastern descent). To avoid further

5

harassment, respondent began looking for a way to
continue working at the hospital's clinic without being
subject to Dr. Levine's supervision. Id. at 4.
Respondent eventually secured an offer to work directly for the hospital as a staff physician, beginning on
July 10, 2006. Pet. App. 5. After receiving that offer,
respondent sent a resignation letter to Dr. Gregory Fitz,
the chair of internal medicine and Dr. Levine's immediate supervisor, resigning from the univer sity . I d. at 4, 5.
Respondent explained that his resignation was a result
of Dr. Levine's "continuing harassment and discrimination," which "stems from [her] religious, racial and cultural bias against Arabs and Muslims that has resulted
in a hostile work environment." Id,. at 5. Dr. Fitz opposed the hospital's hiring of respondent, which prompted the hospital to withdraw its initial offer. Id. at 5-6.
3. Respondent filed a charge with the Equal Employment Opportunity Commission (EEOC), which
found "crediblel] testimonial evidence" that petitioner
had retaliated against respondent for making allegations
of discrimination against Dr. Levine. Resp. Br.8 (quoting Pl. Trial Ex. 78). Respondent thereafter filed suit in
the Northern District of Texas claiming,i'ntar alia,that
petitioner retaliated against him inviolation of Title VII,
42 U.S.C.2000e-3(a).1
A bifurcated jury trial followed. Pet. App. 6. In response to the retaliation claim, petitioner presented
evidence that Dr. Fitz opposed the hospital's hiring of
respondent because of a longstanding affiliation agreement between petitioner and the hospital that required
the hospital to fill its physician posts with university
1 Respondent also sued for constructive discharge, and the jury so
found, but that judgment was vacated on appeal and is not at issue
here. See Pet. App.6,8-10, 15.

6

faculty. Id. at 4-5. At the liability phase, the jury was
instructed that respondent "does not have to prove that
retaliation was [petitioner's] only motive, but he must
prove that lpetitioner] acted at least in part to retaliate." Id,. at 47.2 The jury found petitioner liable for
retaliation. Id. at 48.
During the liabitityphase, the jurywas not instructed
as to petitioner's "affirmative defense"-i'.e., that it
would have taken the same action regardless of the impermissible motive. Instead, during the subsequent'
remedial phase, the district court explained that the
jury may not award damages "for those actions which
fpetitioner] proves by a preponderance of the evidence
that it would have taken even if it had not considered
frespondent's] protected activity." Pet. App. 42-43.
Finding that petitioner failed to make the requisite
showing, the jury awarded respondent $438,167.66 in
back pay and $3,187,500 in compensatory damages. Id.
at 43-44. The district court denied petitioner's motions
for judgment as a matter of law and for a new trial, but
reduced the compensatory damages award to $300,000
pursuant to a statutory cap. Id. at 7,24-25; see 42
U.S.C. 1e81a(bXBXD).
4. The court of appeals affirmed in relevant part.
Pet. App. 70-12,15. On appeal, petitioner argued that
the district court erred in instructing the jury based on
a theory of mixed-motive retaliation. See Pet. C.A. Br.
42-44. Petitioner conceded that its argument was foreclosed by the court's previous decision inSmi'thv.Xerox
Corp.,602 F.3d 320 (5th Cir. 2010), and the court of
appeals so held. See Pet. App. 12 n.16. In Smith, the
2 The parties dispute whether petitioner timely objected to the jury
instructions. See Pet. 23-25; Br. in Opp. 8-11; Pet. Cert. Reply Br. 14; Resp. Br. 14-15; see also Pet. App. 6L-67.

7

Fifth Circuit had adhered to its prior precedent and held
that the "burden shifting seheme" set forth in Pri,ce
Waterhousø, which provided employers an affirmative
defense to liability in mixed-motive cases' continued to
apply to Title VII retaliation claims, notwithstanding
this Court's decision in Gross. 602 F.3d at 328-330.
Even though the jury instructions here departed from
Price Waterhous¿ in that respect (i.e., by providing a
defense to damages, not liability), neither the parties
nor the court suggested that the district court's instructions $/ere inconsistent with Smith.
5. The court of appeals denied rehearing en banc,
with six judges voting in favor of rehearing. Pet' App.
59-67.
SUMMARY OF ARGUMENT

Title VII's "motivating factor" provision (42 U.S.C.
2000e-2(m)), which establishes an employer's liability as
long as a prohibited factor plays a motivating role in the
challenged deeision, applies not only to Title VII substantive discrimination claims but also to Title VII retaliation elaims.s For that reason, this Court's decision in
Gross v. FBL Financial Seruices, Inc., 557 U.S. 167
(2009), has no bearing on this case.
A. Section 2000e-2(m)'s "motivating factor" standard
applies directly to retaliation claims under Title VII.
The statute prohibits the consideration of tace, eolor,
religion, sex, or national origin in "any employment
practice." 42 U.S.C. 2000e-2(m). Retaliation is express3 This brief refers to discrimination claims under Section 2000ez(a)-(d) as "substantive discrimination" claims, and to discrimination
claims under Section 2000e-3(a) as "retaliation" claims, consistent
with this Courfs decision in Burlingtan N. & Sonta Fe Rg. Co. v'
Wh,ite, 548 U.S. 53, 6l-67 (2006). See also Thompson v. N orth Am.
Stai.nless,

LP,

tïl

S. Ct. 863, 868 (2011).

8

ly

designated an "unlawful employment practice," 42
U.S.C. 2000e-3(a), and it follows from a consistent line of
this Court's decisions that retaliation for complaining
about discrimination based on race, color, religion, sex,
or national origin is itself discrimination motivated (at
least in part) by those protected characteristics. See
Gomez-Perez v. Pottar,553 U.S. 474, 479-491 (2008);
CBOCS W, Inc. v. Humphri,es, 553 U.S. 442, 446-457
(2008); Jøcksonv. Birmi,ngha,m Bd,. of Ed,uc., 544 U.S.
167,I73-l8a (2005); Sulliaanv. Little Hunting Park,
lnc.,396 U.S. 229, 237 (7969). Congress could have
chosen to limit the mixed-motive standard to substantive
discrimination claims by, for example, directly amending
the substantive antidiscrimination provisions in Section
2000e-2(a)-(d), rather than enacting a newprovision that
applies to "any employment practice." Congress also
could have limited Section 2000e-2(m) to claims based on
the race, color, religion, sex, or national origin of the
plaintiff. But Congress did neither. By its plain terms,
Section 2000e-2(m) fully applies to Title VII retaliation
claims.
Petitioner's arguments to the contrary are without
merit. This Court's decisions refute the suggestion that
Congress must explicitly refer to "retaliation" in a discrimination statute in order for the statute to encompass
retaliation claims. And Section 2000e-2 is not "Title
VII's discrimination provision" (Pet. Br. 5). Other subsections in Section 2000e-2 extend beyond the substantive antidiscrimination provisions codified therein and,
like (m), apply directly to retaliation claims.
The negative inference petitioner seeks to drawfrom
Congress's express reference to the antiretaliation provision in two other provisions is also unwarranted. The
first (42 U.S.C. 1981a) is codified in a different statute

I
and the statutory history and context refute any such
negative inference; and the second (42 U.S.C. 2000e5(gX2XB)) was enacted more lhan25 years before Section 2000e-2(m), and five years before this Court in
Sulliuanrecognized that discrimination based on a protected charaeteristic encompasses retaliation for complaining about discrimination based on that charaeteristic. In any event, other Title VII provisions do not expressly mention the antiretaliation provision, yet plainly
apply to retaliation claims.
B. The government's interpretation best effectuates
Congress's intent to restore and expand protections
against intentional employment discrimination. The
1991 amendments sought to restore the rule that prevailed in some lower courts before this Court's decision
in Price Waterhouse v. Hopkins,490 U.S. 228 (1989).
That rule applied equally to substantive discrimination
and retaliation claims and, whatever the rule, courts
generally applied the same causation standard to each.
Petitioner would instead attribute to Congress a desire
to adopt a new legal regime applying a different causation standard depending on the type of intentional discrimination alleged under Title VII. Nothing in the
statute's text or legislative history supports that approach.
C. The government's interpretation is further supported by the longstanding and consistent position of
the EEOC. Shortly after the 1991 amendments, the
EEOC issued guidance announcing that it would apply
the "motivating faetor" standard to Title VII retaliation
claims, and it has adhered to that position ever since.
The EEOC's views are reasonable and entitled to deference. See Kastenv. Sai,nt-Gobain Perþrwt'ance Plastics
Corp., 131 S. Ct. 1325, 1335-1336 (2011).

10

D. Because Section 2000e-2(m)'s mixed-motive standard applies directly to Title VII retaliation claims, this
Court's decision in Gross does not control. Petitioner
and its amici argue that Gross's "but for" causation
standard is more practical and better policy, but that
argument should be directed at Congress, not this
Court. In any event, many of petitioner's policy concerns are equally applicable to substantive discrimination claims (to which the mixed-motive standard indisputably applies), and resolving this case in petitioner's
favor thus would not achieve the clarity and uniformity
it seeks. Petitioner contends that retaliation claims are
different, but this Court has broadly construed Title
VII's antiretaliation provision in the face of similar arguments raised in previous cases.
ARGUMENT
AMENDMENTS AUTIIORIZE A MIXED-MOTIVE
STANDARD FOR TITLE VII RETALIATION CLAIMS

THE

1991

In Gross v. FBL Fina,ncial Serui,ces, lnc.,557 U.S.
167 (2009), this Court held that the ADEA does not
authorize a mixed-motive standard for age discrimination claims, i.a., proof that age played some motivating
role in the employer's adverse employment decision
does not, by itself, suffice to establish liability. Petitioner argues (Br.2l-24) that Gross dictates the unavailability of a mixed-motive standard for Title VII retaliation
claims because, "just as in Gross, Congress did not extend its motivating-factor amendments in the 1991
[Act]" to Title VII's antiretaliation provision. Petitioner's premise is incorrect.
îhe "motivating faetof'provision (42 U.S.C. 2000e2(m)) applies directly to Title VII retaliation claims.
That reading is confirmed by the statutory text, structure, context, and purpose, by this Court's repeated and

11

recent reaffirmation that retaliation is discrimination
based on "race, color, religion, sex, or national origin,"
and by the EEOC's longstanding interpretation.
Properly understood, Section 2000e-2(m) applies to Title
VII retaliation claims and establishes an employer's
liability as long as retaliation played a motivating role in
the challenged decision, regardless of whether other
factors also played arole. Gross therefore has no bearing on this case.
A. Title VII's "Motivating Factor" Provision Applies Di'
rectly To Retaliation Claims

1. The 1991 amendments added a "motivatingfactor"
provision to Title VII. By its terms, an "unlawful employment practice" is establishedwhenever a "complaining party demonstrates that race, eolor, religion, sex, or
national origin was a motivating factor for any employment practiee, even though other factors also motivated
the practice." 1991 Act $ 107(a), 105 Stat. 1075 (42
U.S.C. 2000e-2(m)). That standard applies to Title VII

retaliation claims.a
As an initial matter, Section 2000e-2(m)'s mixedmotive standard broadly applies to "any emplo¡rment
practice." 42 U.S.C. 2000e-2(m). Retaliation is expressly designated an "unlawful employment practice" under
(defining an "unlawful employment practice"); 42 U.S.C. 2000e-3 (entitled
"[o]ther unlawful employment practices"). Because
"anA employment practice" by definition includes the

TitleVII.

See 42 U.S.C.2000e-3(a)

4 The accompanying remedial provision applies whenever "an india violation under section 2000e-2(m)." 42 U.S.C. 2000e5(gXZ)(B). Accordingly, if Section 2000e-2(m) applies to Title VII
retaliation claims, so too does Section 2000e-5(gXZXB)'s remedial
framework.

vidual proves

t2
"unlalvful employment practiee [s ] " prohibited by Se ction
2000e-3(a), a retaliation claim necessarily fits within the
category of actions eneompassed by Section 2000e-2(m).
Section 2000e-2(m) provides for liability when the
challenged emplo¡rment practice is motivated in part by
"race, color, religion, sex, or national origin." 42 U.S.C.
2000e-2(m). A Title VII retaliation claim naturally fits
within that language as well. That is the teaching of a
consistent line of this Court's decisions. See GomezPerezv. Potter,553 U.S. 474,479-491 (2008) (retaliation
for opposing age diserimination constitutes discrimination "based on age" under the ADEA's federal-sector
provision) ; CBOCS W., Inc. v . Humphries , 553 U .5. 442,
446-457 (2008) (retaliation for opposing race discrimination constitutes discrimination based on race u :rder 42
U. S. C. 1 981 ) ; J ackson v . Bi,rmingham B d'. of E duc., 544
U.S. 167, 173-184 (2005) (retaliation for opposing sex
discrimination constitutes discrimination "on the basis
of sex" under Title IX of the Education Amendments of
t972,20 U.S.C. L68l et seq.); Sullt'uq'nv. Little Hunting
Park, [nc.,396 U.S. 229, 237 (L969) (retaliation for opposing race discrimination constitutes discrimination
based on race under 42 U.S.C. 1982).
In Jøchson, for example, this Court held that Title
IX, whieh prohibits sex discrimination in federally funded education programs, also prohibits retaliation' even
though the "statute makes no mention of retaliation."
See 544 U.S. at 173-L76 (citation omitted). The Court
explained that "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."
Id,, atl74. Ãecordingly, the Court concluded that "when
a funding recipient retaliates against a person because
he complains of sex discrimination, this constitutes in-

13

tentional 'discrimination' 'on the basis of sex,' in violation of Title IX." Ibid,. In short, "retaliation in response
to a complaint about sex discrimination is 'discrimination' 'on the basis of sex."' Id. at 179 n.3 (emphasis
added).

Similarly, in Gomeø-Perez, this Court held that the
federal-sector provision of the ADEA, 29 U.S.C. 633a(a),
prohibits retaliation, even though that provision likewise
makes no mention of retaliation. See 553 U.S. at 47948L. As the Court explained, "the statutory phrase
'discrimination based on age'includes retaliation based
on the filing of an age discrimination complaint." Id,. at
479; see id. at488 ("lR]etaliation for complaining about
age discrimination is 'discrimination based on age."').
The Court followed its reasoning in Jackson even
though the ADEA (unlike Titte IX) contains an express
right of aetion, id. at 482-483, and even though the
ADEA's private-sector provision separately prohibits
both substantive discrimination and retaliation, id. at
486-488.

In both cases, the Court grounded its decision in the
text of the relevant statute. See Gom,øz-Perez,553 U.S.
at 484 ("Jackson did not hold that Title IX prohibits
retaliation because the Court coneluded as a policy matter that such claims are important. Instead, the holding
in Ju,clisonwas based on an interpretation of the 'text of
Title IX."') (quoting Jackson, 544 Il.S. at 173, 178).
Indeed, the Court found the statutes clear enough to
satisfy the "notiee" requirements of the Spending
Clause, Jackson,544 U.S. at 183, and to provide the
clear statement necessary to waive federal sovereign
immunity, Gomez- P erez, 553 U. S. at 49 1. B oth decisions
also relied on this Court's 1969 decision in Sulliuan,
which reeognized a claim for retaliation under 42 U.S.C.

L4

1982, a statute guaranteeing property rights for all
citizens equal to those "enjoyed by white citizens." See
Gomez-Perez,553 U.S. at 479-48L,484-485,488, 490 n.6;
id. at 493 n.l (Roberts, C.J., dissenting); Jaclcson,544
U.S. at 176-177; see also CBOCS,553 U.S. at446-457.
This Court's decisions thus firmly establish that retaliation for complaining about race discrimination is
"discrimination base d on race" (Sullia an, C B O C 5)6 ; that
retaliation for complaining about sex discrimination is
"discrimination on the basis of sex" (Jackson); and that
retaliation for complaining about age discrimination is
"discrimination based on age" (Gomez-Perez). An employerwho retaliates against an employee for complaining about discrimination based on race (or color, reli-

gion, sex, or national origin) thus is discriminating
based on that protected characteristic. A fortiori,
ttcolor, t' ttreligion,
" " sex, tt or "national origin")
" r ace" ( or
is a "motivating factor" within the meaning of Section

2000e-2(m).
2. Congress could have chosen to limit Section 2000e2(m)'s "motivating factor" standard to substantive discrimination claims in a number of ways. For example,
rather than enacting a new provision, Congress eould
have directly amended the substantive antidiscrimination provisions in Section 2000e-2(a)-(d). Those provisions, like Section 2000e-3(a)'s bar against retaliation,
prohibit discrimination "because of" an impermissible
factor. See 42 U.S.C. 2000e-2(a)-(d) ("because of"); 42
6 SeeGomez-Perez,553 U.S. at479 ('1ùihile [Section]

1982 does not

use the phrase 'discrimination based on race,' that is its plain mean-

ing."); CBOCS,553 U.S. at459 (Thomas, J., dissenting) (While Section 1981(a) "does not use the modern statutory formulation prohibiting 'disclimination on the basis of race,' * * * that is the clear
import of its terms.").

15

U.S.C. 2000e-3(a) ("because"). Yet Congress left eaeh of
those provisions untouehed and instead codified the
mixed-motive standard as an entirely netw subsection
that applies to "any employment practice." 42 U.S.C.
2000e-2(m).
Congress also could have limited Section 2000e-2(m)
to claims involving the compla,ining pørty'sraee, color,
religion, sex, or national origin. Instead, Section 2000e2(m) applies whenever "the complaining party demonstrates that race, color, religion, sex, or national origin
\r/as a motivating factor for any employment practice'"
42 U.S.C. 2000e-2(m). That language encompasses retaliation because it makes clear that Section 2000e-2(m)
applies regardless of the complaining party's membership in a protected class. In contrast, Title VII's substantive antidiscrimination provisions proscribe discrimination because of "such individual's" or "his" race, color, religion, sex, or national origin. See 42 U.S.C.2000e2(aX1) ("such individual's"); 42 U.S.C. 2000e-2(a)(2)
("such individual's"); 42 U.S.C. 2000e-2(b) ("his"); 42
U.S.C. 2000e-2(eX1) ("his"); 42 U.S.C. 2000e-2(c)(2)
("such individual's"); 42 U.S.C. 2000e-2(d) ("his"). If
Congress had intended the "motivatingfactor" provision
to apply to substantive discrimination claims alone, it
could have simply tracked the language of those provisions. That Section 2000e-2(m) is notdefined in terms of
the complaining party's membership in a protected class
reinforces the eonclusion that it applies equally to retaliation claims. See ./øclcson, 544 U.S. at 179 (finding
omission of the modifier " su'ch indiuidual's" significant
in holding that Title IX protects a male coach from re-

taliation

for

complaining about sex discrimination

against a female basketball team).

16

3. Petitioner nevertheless contends (Br.17-20) that

Seetion 2000e-2(m) does not apply to Title VII retaliation claims for three primary reasons. None withstands

scrutiny.
a. Petitioner first argues (Br. 17) that the prohibited
motivating factors are "race, eolor, religion, sex, or national origin," 42 U.S.C. 2000e-2(m)-not "retaliation."
That observation is of little consequence under this
Court's decisions. Petitioner fails to address, let alone
distinguish, Gomeø-Pereø, CBOCS, Jackson, or Sulliaan. As discussed above, the Court has repeatedly (and
recently) held that retaliation for complaining about discrimination based on a protected characteristic is discrimination based on that protected characteristic. See
pp.12-14, supra. Under those decisions, any employer
who retaliates against an employee because he complained about national origin discrimination (as the jury
found in this case) has engaged in discrimination motivated (at least in part) by "national origin."
The fact that Section 2000e-2(m) contains no express
mention of "retaliation" hardly gives rise to any inference that Congress intended to exclude retaliation
claims from the provision's scope. The antiretaliation
provision itself, 42 U.S.C. 2000e-3(a), does not use the
word "retaliation." And the 1991 amendments came
many years after this Court's decision in Sulli'aan.
Given Sulliaan, "there 'ñ/as no need for Congress to
include explicit language about retaliation." CBOCS,
553 U.S. at 453-454 (concluding that the failure to include "the word'retaliation""üvhen amending 42 U.S.C.
1981 in the 1991 Act was understandable in light of SulIiuan); accord Gomez-Perez,553 U.S. at 485,488; Jackson,544 U.S. at 176.

t7
also relies (Br. 17) on the placement of
the "motivating factor" provisionwithin Section 2000e-2
(which contains the substantive antidiscrimination provisions), and not within Section 2000e-3 (which contains
the antiretaliation provision). As an initial matter, peti-

b. Petitioner

tioner mistakenly characterizes "Section 2000e-2" as
"Title VII's discrimination provision" (Br. 5, 17), and its
reasoning proceeds from that erroneous premise. In
fact, only certain subsections of Section 2000e-2 are
appropriately charactefized as "Title VII's discrimination provision[s]," most notably Section 2000e-2(a). And,
as discussed above (pp. 14-15, supra,), Congress did not
directly amend those provisions.
More fundamentally, Congress has never treated the
provisions within Section 2000e-2 as eonfined to substantive discrimination, to the exclusion of retaliation.
For instance, Subsection (n), like Subsection (m), was
added as partofthe 1991 Act. See $ 108, 105 Stat. 1076.
Subsection (n) limits the opportunities to collaterally
attack employment practices implemented as part of a
litigated or consent judgment resolving "a claim of employment discrimination under the Constitution or Federal eivil rights laws." 42 U.S.C.2000e-2(nX1)(A). On
its face, that provision applies beyond the substantive
antidiscrimination provisions in Section 2000e-2;indeed,
it applies beyond Title VII. If an employee sues for
retaliatory discharge under Section 2000e-3(a), and the
court orders reinstatement, any person adversely affected by that judgment (e.9., an employee who loses his
seniority as a result) would generally be barred from
collaterally attacking the judgment if he was given notice and an opportunity to be heard. 42 U.S.C. 2000e2(nX1). That Congress plaeed the consent-judgment

18

provision in 42 U.S.C. 2000e-2, and not in 42 U.S.C.
2000e-3, is of no moment: the text controls.
The national-security exemplion, 42 U.S.C. 2000e2(g), likewise demonstrates that petitioner's understanding of Section 2000e-2is incorrect. That exemption
provides that "it shall not be an unlawful employment
practice for an employer * * * to discharge any individual from any position" if the individual has failed to
fulfilt any requirement imposed in the interest of national security. Ibid. That exemption plainly applies to
a Title VII retaliatory discharge claim because retaliation is also an "unlawful employment practice." See
pp. 11-12, suprü, cf. Cruz-Packer v. Cherf'off, 612
F. Supp. 2d67,69,70-7L (D.D.C.2009) (dismissing substantive discrimination and retaliation claims brought
under Title VII's federal-sector provision based on 42
U.S.C. 2000e-2(g)). Again, the mere placement in Section 2000e-2 says nothing about the subsection's application to retaliation claims brought under Section 2000e3(a).
Viewed in context, the fact that Congress codified the
"motivating factor" provision as part of Section 2000e-2

has little probative force. Had Congress eodified the
retaliation provision within Secti on 2000 e-2, for instanc e
as 42 U.S.C. 2000e-2(z), instead of as 42 U.S.C.2000e3(a), the analysis would remain the same, and Section
2000e-2(m)'s "motivating factor" standard would apply
in either event.
c. Petitioner briefly cites (Br. 23) two other provisions in which C ongress expressly referenced Title VII's
antiretaliation provision and suggests that its failure to
do so in Section 2000e-2(m) evidences an intent to exclude such claims. That is incorrect.

19

i.

Contrary to petitioner's charaeterization (Br. 23),
Congress did not "amend[] Title VII's retaliation provisions in 1991." The only purported amendment petitioner identifïes is Section 102(a) of the 1991 Aet, which
authorizes the recovery of compensatory and punitive
damages. $ 102(a), 105 Stat. L072. Seetion 102, however, did not amend Titte VII directly. Instead, Congress
created a neïv statutory provision codified at 42 U.S.C.
1981a. And that provision applies to other discrimination laws in addition to Title VII. See 1991 Act
$ 102(aX2), 105 Stat. 1072. In that distinct context, Congress specified that compensatory and punitive damages
are available in cases of "unlawful intentional discrimination (not an employment practice that is unlawful
because of its disparate impact) prohibited under section
703,704, or 717 of the AeIl42 U.S.C. 2000e-2,2000e-3,
2000e-161." Id. $ 102(a), 105 Stat. 1072.
As the text of that provision indicates, Congress, by
tisting the specific forms of "unlawful intentional discrimination" for which damages would be available,
sought to distinguish between those unlawful practices,
on the one hand, and a practice made unlawful because
of its disparate impact, on the other hand. There is thus
no basis for inferring from Section 1981a that, in any
provision in which Congress fails to specifically refer to
retaliation, Congress intends to exclude retaliation
claims from the provision's scope.
Any such negative inference is fully rebutted when
one considers the 1991 amendments to Section 1981a's
neighboring provision,42 U.S.C. 1981. In response to
this Court's decision in Pattarson v. McLean Credit
(Jnion,491 U.S. 164 (1989), Congress amended Section
1981 to make clear that its protections applied even
afLer contract formation. 1991 Act $ 101, 105 Stat. 1071-

20

1072; see Land,graf, Sll U.S. at 251. Even though the
text makes no mention of "retaliation," Congress plainly
intended the amended provision to apply to all forms of
intentional emplo¡rment discrimination, including "retaliation." See, e.g., H.R. Rep. No. 40, l02d Cong., lst
Sess. Pt. 1, at 92 &, n.92 (1991) (House Report Pt. 1);
H.R. Rep. No. 40, l02d Cong., lst Sess. Pt. 2, at 37
(1991) (House Report Pt. 2). In CBOCS, this Court so
held. 553 U.S. at 450-451', 452-454, 457. If Congress's
specific reference to the Title VII antiretaliation provision in Section 1981a meant that any provision that fails
to contain sueh a reference necessarily excludes retaliation, this Court would have reaehed the opposite result
in CBOCS. Section 1981a therefore is of no assistance to

petitioner.

ii. Petitioner also cites (Br. 23) Section

2000e-

5(gX2XA), which preeludes eourts from ordering certain
relief, such as reinstatement, when the employee was
discharged for reasons "other than discrimination on
account ofrace, color, religion, sex, or national origin or
in violation of seetion 2000e-3(a) of this title." 42 U.S.C.
2000e-5(gX2XA). It is true that, under the government's
reading, Congress could have omitted the final phrase
"or in violation of section 2000e-3(a) of this title," because retaliation for complaining about discrimination
based on race, color, religion, sex, or national origin is
itself discrimination based on those same protected
charaeteristics. But the negative inference petitioner
seeks to draw is unwarranted for several reasons.
First, the substance of that provision was enacted as
part of the Civil Rights Act of 1964-more than 25 years
before Section 2000e-2(m). Civil Rights Act of 1964,
Pub. L. No.88-352, $ 706(g), 78 Stat.261. "'lN]egative
implications raised by disparate provisions are strong-

2l
est' in those instances in which the relevant statutory
provisions ïvere 'considered simultaneously when the
language raising the implication was insert ed."' GomezPerez,553 U.S. at 486 (quoting Lind'h v. Murphry, 521
U.S. 320, 330 (199?)) (brackets in original). Here, the
two provisions were not "enacted together." Ibid,.6
Second, the government's interpretation relies in
substantial part on decisions of this Court that postdate
the 1964 enactment, including the 1969 Sul\i'uo,n deeision. This Court has assumed that Congress \Mas aware
of Sulliuaø when enacting subsequent statutes. See
Gomez-Perø2,553 U.S. at 485, 488, 490 n.6 (noting that
the ADEA's federal-sector provision was enacted "five
years after the decisionin Su\Iiaan" andthat "Congress
was presumably familiar vnth Sulli'uan"); Jaclcson,,544
U.S. at 176 (noting that Title IX was enaeted three years
after Sulliuan and that it is "realistic to presume that
Congress was thoroughly familiar with" that decision)
(citation omitted). The same cannot be said of a statutory provision enacted five years beforehand.
In any event, there are a number of provisions in Title VII that plainly apply to retaliation claims even
though they contain no express reference to Section
2000e-3(a). As noted above, several subseetions ofSection 2000e-2 fall into that category. See pp. 17-18, supra. Bttthere are other provisions as well. Many of the
6 The 1991 amendments reorganized Section 2000e-5(g) to create
separate paragraphs and subparagraphs. $ 107(b), 105 Stat. 1075.
Although Congt'ess ret¿ined the language of the original 1964 Act in
the newly designated Subparagraph (A), it did not use that language
as a model for the mixed-motive remedial provision in Subparagraph

(B). Unlike Subparagraph (A), Section 2000e-5(gX2XB) references
neither "discrimination on account ofrace, color, religion' sex, or national origin," not a 'liolation of section 2000e-3(a)." It simply crossreferences Section 2000e-2(m).

22

enforcement provisions, for example, indisputably apply
to all "unlawful employment practices," including retaliation. See 42 U.S.C.2000e-5(b)-(d), (f), (gxl); see also
42 U.S.C. 2000e-5(i)-(k) (applying to all actions brought

"under this section" or "subchapter"). Yet the antiretaliation provision is separately enumerated in only
one of those provisions: Section 2000e-5(gX2XA). Cf .42
U.S.C. 2000e-5(a) (referring generally to "seetion 2000e3"). Accordingly, the most that can be said is that Congress sometimes refers expressly to the antiretaliation
provision, and sometimes does not. Cf. Robinson v.
Shell Oil Co., 519 U.S. 337, 341-3 42 (1997) ("[T]hat other
statutes have been more specific lin referring specifically to "former employees"l proves only that Congress
ca% rse the unqualified term'employees' to refer only to
current employees, not that it did so in this particular
statute.").7
4. As petitioner notes (Br. 18), several courts of appeals have held that Section 2000e-2(m)'s "motivating
factor" standard does not apply to retaliation claims.s
Every one of the decisions cited by petitioner, however,
predated this Court's decisionsinJa,ckson, CBOCS, and
Gomeø-Pereø. And not a single one cites Sulliuan, on
? The same reasoning applies with more force to 38 U.S.C. 4311
(cited at Pet. Br. 19), a different discrimination statute adopted at a
different time by a different Congtess. See CBOCS, 553 U.S. aí454
(rejecting argument that Congress's failure to mention the "word
'retaliation"' in amending 42 U.S.C. 1981was intended to exclude retaliation because "Congress has included explicit antiletaliation language in other civil rights statutes").
I Contrary to petitioner's suggestion (Br. 18), the D.C. Circuit has
not decided that issue. See Porterv. Natsios,414 F.8d 13, 19 (2005).
The case petitioner cites involved only "pre-L991 claims of retaliation
under Titìe VII." Borgov, Gold,in,204 F.3d 251,255 n.6 (D.C. Cir,
2000).

23

which this Court relied in each of those decisions. The
court of appeals' decisions cited by petitioner simply
assume that "race, color, religion, sex, or national
origin" cannot be a "motivating factor" in a retaliation
case, and that Congress has to expressly mention "retaliation." See, e.g., Kubicko v. Ogden Logistics Søros., 181
F.3d 544, 552 n.7 (4th Cir. 1999); McNutt v. Board' of
Trs. of the Unia. of 111.,141 F.3d 706,707-709 (?th Cir.
1998); Woodsonv. Scott Paper Co.,l09 F.3d 913, 933 (3d
Cir.), cert. denied,522 U.S. 914 (1997). Those assumptions do not survive this Court's intervening decisions
for the reasons explained, and the other arguments
advanced in support of limiting Section 2000e-2(m) to
substantive discrimination claims are unpersuasive for
the reasons set forth above. Cf. Gross, 557 U.S. at 183184 & n.5 (Stevens, J., dissenting) (noting majority's

rejection of widespread agreement among circuit
courts); Desert Palace, Inc. v. Costa, 539 U.S. 90, 95

(2003) (rejeeting near-unanimous agreement among
courts of appeals).
The Fifth Circuit, in a decision issued after petitioner's opening brief in this case, recently concluded that
Section 2000e-2(m) does not encompass retaliation
claims, although the court considered it a "close question." Carter v. Luminant Power Sertts. Co., No. 1210642,2013 WL 1337365, at *3 (Apr. 3, 2013). Unlike
the earlier court of appeals' decisions, the Fifth Circuit
addressed this Court's decisions in Gomez-Perez,
CBOCS, Jacltson, and Su\liaon. And the court recognized the "force" of arguing that "tace" is a "motivating
factor" whenever an employer retaliates against an
individual for complaining about race discrimination. Id,.
at*2. The eourt nevertheless concluded that such reasoning should not be applied to Title YII. Id. at *2-*3.

24

As explained, however, this Court's decisions cannot be
so easily distinguished.s

B.

Applying The "Motivating Factor" Provision To Retaliation Claims Best Effectuates Congressional Intent

The 1991 amendments were intended to "restore and
strengthen" protections against intentional employment
discrimination. Housø Report Pt. 2, at 1. Applying the

"motivating factor" provision to Title VII retaliation
claims best effectuates that intent. Conversely, the
statute's history provides no support for petitioner's
theory that Congress intended to apply a mixed-motive
standard to all intentional discrimination claims under
Title VII encept retaliation claims.
1. In amending Title VII to add the "motivating factor" provision, Congress expressed that it was "clarifying," "reaffirming," and "restorfing]" Congress's original intent in enacting the Civil Rights Act of 1964. 1991
Act $ 107, 105 Stat. 1075 ("clarifying"); House Report
e The Fifth Circuit's asserted distinctions between Title VII and
Gomez-Peraz do not withsüand scrutiny. The court noted that the
ADEA's federal-sector provision was enacted "only five years" after
Sulliuan, whereas the 1991 amendments were adopted seventeen
years later. Carter,2013 WL 1337365, at *3. That CBOCS (decided
the same day as Gomez-Perez) relied heavily on Sulliuonto interpret
the same 1991 amendments, SSS U.S. at446-457, strongly suggests
that Congress did not simply forget abolt Sulliaan. The court also
noted that, unlike here, Gomez-Perez did not involve a situation in
which "private employers are already subjected to an'antidiscrimination' and an'antiretaliation'prohibition, and Congtess adds a provision that does not mention retaliation." Carter, 2013 \ML 1337365, at
*3. In fact, the circumstances in Gomez-Perez wete analogous:
private employers were already subject to a substantive antidiscrimination provision and an antiretaliation provision, and Congress added
a federal-sector provision that did not mention retaliation. 553 U.S.
at 486.

25

Pt. 2, at 2 ("reaffirming"); House Report Pt. 7, at 47
("restor[ing]").to According to the House Reports, the
amendments were designed to "restore the rule applied"
by certain courts of appeals (and the EEOC) before
Prùce Waterhouse: "that any diserimination that is
actually shown to play a role in a contested employment
decision may be the subject of liability." House Report
Pt.2, at 18; see id. at 17-18 & n.31 (citing court of appeals' decisions); House Report Pt. 7, at 46 &' n.41,48
(citing court of appeals'decisions and EEOC decisions).
The "rule" Congress sought to "restore" \ry'as not limited to substantive discrimination claims; it applied
equally to retaliation claims. The House Reports, for
example, relied heavily onBibbsv. B\ock,778F.2d 1318,
132I-1324 (8th Cir. 1985) (en banc). See House Report
Pt. 1, at 46 n.4I, 48; H ouse Report Pt. 2, at 18 n.31. The
"rule" announced in that ease, which Congress "enr0

Petitioner suggests that if Congress had intended to clarify its
original intent to allow a mixed-motive standard, Section 2000e-2(m)
would have been unnecessary. Br. 19 (citing Gross,557 U.S. atl78
n.5). But Congress's decision to codify that portion of PriceWaterhouseisunsurprísing given the fractured nature ofthat decision; the
uncertainty over the appropriate standard (i.e.,whebher plaintiffs
had to demonstrate a "motivating" or "substantial" factor, and whether the two standards were qualitatively different); and the confusion
over the "direct evidence" requirement (i^e,, whether "direct evidence" was required to shift the burden of proof and, if so, what
qualified ¿s "direct evidence"). By codifying a mixed-motive standard
in Section 2000e-2(m), Congress resolved much of that uncertainty.
To prove aviolation under Section 2000e-2(m), a plaintiff must demonstrate that the impermissible consideration was a "motivatin g" factor, 42 U.S.C. 2000e-2(m); that showing can be satisfied with any
evidence (not just "direct evidence"), Desert Palace,539 U.S. at 98101; and, unlike under Price Waterhouse, proof that an employer
would have made the same decision regardless of the impermissible
motive is no defense to liability.

26

dorseld]" and "restore[d]," Housø Report Pt. 1, at 48,
had been applied to retaliation claims. See Jolt'nsonv.
Legat Serus. of Ark., Inc.,8l3 F.zd 893, 899-900 (8th Cir.
1987); EEOC v. General Lines, Inc.,865F.zd 1555, 1560
(10th Cir. 1989). Indeed, at that time, courts generally
applied the same causation standard (however defined)
to retaliation claims under Section 2000e-3(a), as they
did to discrimination claims under Seetion 2000e-2(a).
See, e.g.,Woodson,lOg F.3d at934; Zandersv. Nationa|
R.R. Passenger Corp., 898 F.zd 1127, 1135 (6th Cir.
1 99 0) ; lt oss v . C ommun'ication s S atellit e C orp., 7 59 F .2d
355, 364-366 (4th Cir. 1985) ; Willi'ams v. Boorstin, 663
F.zd 109, 116-11? (D.C. Cir. 1980), cert. denied,451 U.S.
985 (1e81).

Contrary to its stated intent to "restore" and "reaffirm," petitioner would attribute to Congress the opposite intent: to create a nerw legal regime that carves out
an exeeption for "retaliation," varying the causation
standard depending on the type of intentional discrimination at issue. The legislative history strongly suggests that Congress did not intend such a stark departure from the status quo. See Mcl{utt,l4l F.3d at 708709 (acknowledging that it eould identify "no logical
reason why Congress would have changed the mixedmotive standard for one class of unlawful employment
practices while allowing Pri,caWøterhousø to operate in
another"); cf. CBOCS, 553 U.S. at450,454 (giving effect
to Congress's intent to "restore" aninterpretation that
prevailed before this Court's decisionin Patterson).
2. Applying Seetion 2000e-2(m)'s "motivating factor"
standard to Titte VII retaliation claims also better effectuates Congress's general intent in adopting the 1991
amendments. Congress sought to provide "additional
protections against unlawful discrimination in employ-

27

ment" and "additional remedies '¡ * * to deter unlawful harassment and intentional discrimination in the
workplace." 1991 Act $ 2, 105 Stat. 1071, The 1991
amendments were designed to "restore and strengthen,"
not constrict, the protections available to victims of
intentional emplo¡rment discrimination. House Report
Pt.2, at 1; see Landgrøf,5ll U.S. at250. And the "motivating factor" provision was intended to prohibit "øll"
forms of "invidious eonsideration of sex, race, eolor,
religion, or national origin in emplo¡rment decisions."
House Report Pt. 2, at17.
To be sure, Congress may have primarily focused on
substantive discrimination claims of the sort at issue in
Pri,ceWaterhousø. But that is not indicative of an intent
to provide victims of retaliation with lesser protection.
To the contrary, this Court has recognized that broad
protection against retaliation is critical to securing the
primary objective of guaranteeing "a workplace where
individuals are not discriminated against because of
their racial, ethnic, religious, or gender-based status."
BurlingtonN. & SantaFe Rg. Co.v.White,548 U.S.53,
63 (2006) (BurlingtonNorthern). "TitleVII depends for
its enforcement upon the cooperation of employees who
are willing to file complaints and act as witnesses ," id,. at
67, and "fear of retaliation is the leading reason why
people stay silent," Crawford'v. Metropoli'tøn Gou't of
Nashui.lle & Daaidson Cntg.,555 U.S. 271,279 (2009)
(brackets and citations omitted). Construing Section
2000e-2(m)'s "motivating factor" provision narrowly to
exclude retaliation claims "threatenls] to undermine
Title VII's twin objectives of deterring employers from
discriminatory conduct and redressing the injuries suffered byvictims of discrimination." House Raport Pt.2,
at 17.

28

C.

The EEOC's Longstanding Interpretation Is Reasonable And Entitled To Deference

The EEOC has consistently taken the view that Section 2000e-2(m)'s "motivating factor" standard applies
directly to Title VII retaliation claims. That longstanding and eonsistent interpretation is reasonable and entitled to deference.
Shortly afher the 1991 amendments, the EEOC issued enforcement guidance advising thal "iL will find
liability and pursue injunctive relief whenever retaliation plays any role in an employment decision." Enforcement Guidønce on Recent Deuelopments in Disparate Treq,tment Theory (July 14, 1992), 1992 WL
1364355, al*6 n.l4 (Enforcement Guido,nce). The guidance explained that "[t]he Commission has a unique
interest in protecting the integrity of its investigative
process, and if retaliation rvere to go unremedied, it
would have a chilling effect upon the willingness of individuals to speak out against employment discrimination." Ibid. Accordingly, the EEOC announced that it
"will find cause when retaliation is a motivating faetor in
an employment decision, and evidence showing that the
employer would have taken the sâme aetion even absent
its retaliatory motive would pertain only to whether the
charging party is eligible for individual relief." Ibid.1l
The EEOC's compliance manual advances the same

position. 2 EEOC Compliance Manua¿ $ 8-II(EXl)
(May 20, 1998), http://www.eeoc.govþolicy/docs/
u The enforcement guirlance acknowledged that Section 107 of the
1991 Act did not specifically mention "retaliation," but still found no
reason to deviate from the EEOC's "long-standing rule." Enforcement Guidonce, zt *6 n.14. As described in the text, the EEOC
subsequently elaborated on its reasoning, making clear that it understood Section 2000e-2(m) to apply directly to retaliation claims.

29

retal.pdf ("If there is credible * * * evidence that
retaliation was a motive for the challenged action,
'cause' should be found. Evidence as to any legitimate
motive for the challenged action would be relevant only
to relief, not to liability.").r2 The compliance manual
explains that "section 107 applies to retaliation," and
disagrees with the courts of appeals to have held otherwise. Id. $ 8-II(EX1) n.45 (eiting cases); ibid,. ("The
basis for finding 'cause' whenever there is credible
* * {< evidenee of a retaliatory motive is Section 107 of
the [1991 Act]."). îhe Commission further explains that
its interpretation is consistent with the courts' "long
held" view "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." Ibi'd. And, it continues, a
contrary interpretation "that permits proven retaliation
to go unpunished" would "underminel] the purpose of
the anti-retaliation provisions of maintaining unfettered
access to the statutory remedial mechanism." Ibid.
The EEOC's longstanding and consistent interpretation of the statute provides additional support for the
eonclusion that the "motivating faetor" provision encompasses Title VII retaliation claims. "[T]he agency's
policy statements, embodied in its compliance manual
and internal directives * * * reflect'a body of experience and informed judgment."' Federal Express Corp.
P As originallyworded, the compliance manual referred to credible
"direct" evidence of aretaliatorymotive. $ 8-II(EX1). The EEOC no

longer requires "direct" evidence following this Court's decision in
Desert Palace. See Effict of Desart Palace, Inc. u. Costao 599 U.S' 90
(2003), on Reuised, Enforcement Guidonce on Recent Deaelopments
in Disparate Treatment Theory (JulA 14, 1992) (as amended Jan. 16,
2009), http ://www. eeoc. gov/policy/do cs/disparat.html.

30

v. Holowecki, 552 U.S. 389, 399 (2008) (citations omitted). As such, they warrant a measure of respect and
deference. See Kasten v. Sa,int-Gobain Perþrmance
Plastics Corp., 131 S. Ct.1325,1335-1336 (2011) (giving
weight to EEOC's consistent position set forth in compliance manual); Federal Enpress,552 U.S. at 399 (deferring to EEOC guidance that had "been binding on
EEOC staff for at least five years"); Robi,nsorz, 519 U.S.
at 345-346 (EEOC's positions "carty persuasive force
given their coherence and their consistency with a primary purpose of antiretaliation provisions"); see also
Thom,psonv. Nortlt Am. Stainless, LP,131 S. Ct. 863,
870-871 (2011) (Ginsburg, J., concurring) (deferring to
EEOC's "longstanding views" as expressed in complianee manual).

D.

Because The lggL Amendments Authorize A Mixed'
Motive Standard For Title VII Retaliation Claims,
Gross Does Not Control

This Court's decision in Gross rested in large part on
the ground that Congress added a "motivating factor"
provision to Title VII, but not to the ADEA. See 557
U.S. at 174-L75. Because Congress di.d add a "motivating faetor" provision to Title VII, and because that provision applies directly to the Title VII retaliation claim
at issue here, Gross has no bearing on this case.
Petitioner and its amiei, however, contend that the
"but for" standard adopted in Gross is more practical
and represents better policy. Those arguments cannot
overcome the statutory text, structure, or purpose. Nor
can they override the EEOC's longstanding position
that Title VII authorizes a mixed-motive standard for
retaliation claims. In any event, they fail on their own
terms.

31

1. Many of the arguments advanced by petitioner
and its amici suffer from the same flaw: they apply
equally to Title VII substantive discrimination claims to
which the mixed-motive standard indisputably applies.
Petitioner argues, for example, that the mixed-motive
standard is "difficult to apply." Br. 25 (quoting Gross,
55? U.S. at L79); see id. at 26-28. Petitioner contends
that mixed motives are "easy to allege" and "difficult for
defendants to disprove," precluding summary judgment
and prompting the settlement of "meritless" cases. .Id.
atïl-ï2. And petitioner emphasizes the need for a uniform standard. Pet. 8r.28-30.
Deciding this case in petitioner's favor would not resolve any of those concerns. A mixed-motive standard

would still apply to other claims, and the uniformity
petitioner envisions is illusory. Regardless of the outcome here, a standard other thanGross's "but for" cause
would continue to apply to substantive discrimination
claims under Title VII (42 U.S.C. 2000e-2(m)), to other
federal statutes where the causation standard is express
(see Pet. Br. 19; Equal Employment Advisory Council
Amicus Br. 13-15), in contexts where the expert agency
has issued an authoritative interpretation adopting a
burden-shifting standard (see Nl-R B v. Transportation
Mgmt. Corp.,462 U.S. 393,401-403 (1983); Gross,557
U.S. at 179 n.6), and to eonstitutional claims (see Mount
Healthg Citg Sch. Dist. Bd. of Educ. v. Doyle,429 U.S.
274,285-287 (1977); Gross,557 U.S. aL I79 n.6)."
Creating a nevv, divergent standard for a subset of
Title VII intentional discrimination claims would only
exacerbate the purported confusion. Under petitioner's
13

For this reason and others, the Court should decline petitioner's
invitation to consider whether Gross should be applied to other
statutes not before the Court.

32

theory, juries in cases alleging both substantive discrimination and retaliation under Title VII would confront
two different causation standards. Cf. Pet. Br. 29 n.1.
The objectives identified by petitioner would be better
served by applying the same causation standard to
claims arising under l,he same statute. To the extent
petitioner and its amici disagree with the policy decisions reflected in the 1991 amendments to Title VII,
their concerns should be directed at Congress, not this
Court. See Poweren Corp. v. Reliant Energy Serus.,

Inc., 551 U .S. 224, 237 -238 (2007).
2. Petitioner, however, contends (Br. 33-35) that its
stated concerns are "especially acute in the retaliation
context" because retaliation is even easier to allege and
more difficult to disprove than substantive discrimination. In petitioner's vie\4t, employees will strategically
complain of discrimination, however meritless, in order
to shield themselves from an adverse employment action. Employers, in turn, will be deterred from making
necessary employment decisions for fear of being accused of retaliation.
That same argument was made, unsuecessfully, in
several recent Title VII retaliation cases. Faced with
similar expressed concerns, the Court broadly construed
the antiretaliation provision to extend to third parties
(Thompson),to employees that do not speak out on their
own initiative (Crawford), andto circumstances beyond
employer- or workplace-related retaliatory acts (BurIingtonNortltetv¿).14 Indeed, to the extent the Court has
deemed it appropriate to subject retaliation elaims to
differential treatment, it has interpreted the antiretalSee Resp. Br. at 24-27, Thompson, sryra,; Pet' Br' at29-3l,47
n.16 & Reply Br. at 8-10, BurlingtonNorthem', swra; cf' Resp. Br'
at 33-34, Crawford, supra.
1a

r)o

<)()

iation provision to provide nl,ore protection than the
substantive antidiscrimination provisions. See Burling ton Northern, 548 U.S. at 61-67 (Section 2000e-3(a) is
not limited to the materially adverse employment actions required by Seetion 2000e-2(a).). Petitioner's arguments thus provide no basis for construing Section
2000e-2(m) to exelude retaliation claims from its terms.
CONCLUSION

Thejudgment ofthe court of appeal s should be affirmed.

Respeetfully submitted.
Do¡l¡r,¡

B. Vnnnrlr,r, Jn.
Solicitor General
Tnouls E. Pnnnz
P.

D¡vro Lopnz

General Counsel
C¡nolvr¡ L. Wnpnr,un
Acting As s o ciate G eneral
Counsel

GRII S. Cor,nu^qN
Attorney
EquaL Emplogment
Opportunity C ommis sion
APRIL 2013

As sistant Attom,ey

G

eneral

Snr SnrNrves¡¡r
D

eputy Soli.citor General

Mnlrss¡.Ansus SHonny

Assistant to the Soli,citor
General
Dnwurs J. Drusnv

Tov¡s R. C¡,oono¡¡
Attornegs