State of Texas v. EEOC et al

Filing 32

RESPONSE filed by State of Texas re: 29 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Exhibit(s) Exhibits Table of Contents, # 2 Exhibit(s) Exhibit A, # 3 Exhibit(s) Exhibit B, # 4 Exhibit(s) Exhibit C, # 5 Proposed Amendment Exhibit D) (Oldham, Andrew)

EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS,
Plaintiff,
vs.

Case No. 5:13-cv-00255-C

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
JACQUELINE A. BERRIEN,
in her official capacity as Chair of the Equal
Employment Opportunity Commission,
and
ERIC H. HOLDER,
in his official capacity as Attorney General
of the United States,
Defendants.

PLAINTIFF ’S OPPOSITION TO MOTION TO DISMISS

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TABLE OF CONTENTS
Table of Authorities........................................................................................................................................... ii
Introduction ........................................................................................................................................................ 1
Background ......................................................................................................................................................... 1
Summary of Argument...................................................................................................................................... 3
Argument ............................................................................................................................................................ 4
I.

The State Has Standing .......................................................................................................... 4
A.
B.

II.

The State’s Injuries Are Concrete, Traceable, and Redressable ......................... 4
EEOC’s Counterarguments Are Meritless ............................................................ 6

The State’s Claims Are Ripe.................................................................................................. 8
A.

The State’s Claims Are Presumptively Reviewable, And EEOC Does
Not Attempt To Rebut That Presumption ........................................................... 8
1.
2.

B.
III.

The State’s claims are fit for review .......................................................... 9
The balance of hardships tips decidedly in the State’s favor ..............11

EEOC’s Counterarguments Lack Merit ..............................................................14

The Felon-Hiring Rule Constitutes Final Agency Action ..............................................16
A.

The Felon-Hiring Rule Is Reviewable Under Section 704................................17

B.

EEOC’s Counterarguments Lack Merit ..............................................................23

Conclusion ........................................................................................................................................................25
Certificate of Service
Exhibits

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TABLE OF AUTHORITIES
Cases
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) .................................................................................................................. 8, 9, 13, 15
Alaska v. United States Dep’t of Transp.,
868 F.2d 441 (D.C. Cir. 1989).................................................................................................................. 8
Alfred L. Snapp & Son, Inc. v. Puerto Rico,
458 U.S. 592 (1982) ................................................................................................................................... 8
American Bus Ass’n v. United States,
627 F.2d 525 (D.C. Cir. 1980)......................................................................................................... 18, 22
Appalachian Power Co. v. EPA,
208 F.3d 1015 (D.C. Cir. 2000).................................................................................... 18, 19, 22, 23, 24
AT&T v. EEOC,
270 F.3d 973 (D.C. Cir. 2001)................................................................................................................24
Atchison, Topeka & Santa Fe Ry. v. Pena,
44 F.3d 437 (7th Cir. 1994) ....................................................................................................................20
Barrick Goldstrike Mines v. Browner,
215 F.3d 45 (D.C. Cir. 2000) ..................................................................................................... 19, 22, 23
Bennett v. Spear,
520 U.S. 154 (1997) .................................................................................................................................17
Better Gov’t Ass’n v. Department of State,
780 F.2d 86 (D.C. Cir. 1986) ........................................................................................................... 19, 23
Board of Trs. Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) .................................................................................................................................16
Christopher v. SmithKline Beecham Corp.,
132 S. Ct. 2156 (2012) .............................................................................................................................10
Ciba-Geigy Corp. v. EPA,
801 F.2d 430 (D.C. Cir. 1986)......................................................................................................... 14, 24
City of Boerne v. Flores,
521 U.S. 507 (1997) .................................................................................................................................16
City of Dania Beach v. FAA,
485 F.3d 1181 (D.C. Cir. 2007)..............................................................................................................24
ii

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Clean Air Implementation Project v. EPA,
150 F.3d 1200 (D.C. Cir. 1998)..............................................................................................................13
Cohen v. United States,
578 F.3d 1 (D.C. Cir. 2009) ................................................................................................ 17, 18, 20, 22
Cohen v. United States,
650 F.3d 717 (D.C. Cir. 2011) (en banc) ..............................................................................................17
CSI Aviation Servs. v. DOT,
637 F.3d 408 (D.C. Cir. 2011)................................................................................................................24
Eagle-Picher Indus., Inc. v. EPA,
759 F.2d 905 (D.C. Cir. 1985).................................................................................................................. 9
EEOC v. Peoplemark, Inc.,
732 F.3d 584 (6th Cir. 2013) ........................................................................................ 1, 2, 7, 11, 12, 15
El v. SEPTA,
479 F.3d 232 (3d Cir. 2007)............................................................................................................... 2, 14
Federal Express Corp. v. Holowecki,
552 U.S. 389 (2008) .......................................................................................................................... 24, 25
Illinois Dep’t of Transp. v. Hinson,
122 F.3d 370 (7th Cir. 1997) .................................................................................................................... 8
Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000) ...................................................................................................................................16
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ........................................................................................................................ 4, 5, 24
Manufactured Housing Institute v. EPA,
467 F.3d 391 (4th Cir. 2006) ........................................................................................................... 20, 22
McLouth Steel Prods. Corp. v. Thomas,
838 F.2d 1317 (D.C. Cir. 1988)..............................................................................................................23
NRDC v. EPA,
643 F.3d 311 (D.C. Cir. 2011).................................................................................................. 19, 20, 22
Ohio Forestry Ass’n v. Sierra Club,
523 U.S. 726 (1998) ............................................................................................................................ 9, 13
Owner-Operator Indep. Drivers Ass’n v. Federal Motor Carrier Safety Admin.,
656 F.3d 580 (7th Cir. 2011) .............................................................................................. 6, 7, 9, 13, 15

iii

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Reckitt Benckiser v. EPA,
613 F.3d 1131 (D.C. Cir. 2010)..............................................................................................................13
Roark & Hardee LP v. City of Austin,
522 F.3d 533 (5th Cir. 2008) ..................................................................................................................12
Sabre, Inc. v. Department of Transp.,
429 F.3d 1113 (D.C. Cir. 2005)...................................................................................... 9, 11, 12, 14, 16
Safe Extensions v. FAA,
509 F.3d 593 (D.C. Cir. 2007)................................................................................................................24
Seminole Tribe of Florida v. Florida,
517 U.S. 44 (1996) ...................................................................................................................................16
Shaughnessy v. Pedreiro,
349 U.S. 48 (1955) ..................................................................................................................................... 9
Shays v. FEC,
414 F.3d 76 (D.C. Cir. 2005) ..................................................................................................................10
Stilwell v. Office of Thrift Supervision,
569 F.3d 514 (D.C. Cir. 2009)............................................................................................................. 6, 7
Student Loan Marketing Ass’n v. Riley,
104 F.3d 397 (D.C. Cir. 1997)................................................................................................................24
Syncor Int’l Corp. v. Shalala,
127 F.3d 90 (D.C. Cir. 1997) ........................................................................................................... 18, 22
Teva Pharms. USA, Inc. v. Sebelius,
595 F.3d 1303 (D.C. Cir. 2010)..............................................................................................................10
Texas v. United States,
497 F.3d 491 (5th Cir. 2007) ..................................................................................................................13
United States v. Mead Corp.,
533 U.S. 218 (2001) .................................................................................................................................23
United States v. Texas,
143 U.S. 621 (1892) .................................................................................................................................16
Whitman v. American Trucking Ass’ns,
531 U.S. 457 (2001) ................................................................................................................................... 9
Wyeth v. Levine,
555 U.S. 555 (2009) ................................................................................................................................... 7

iv

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Statutes
42 U.S.C. § 2000e-2(k)....................................................................................................................................... 7
5 U.S.C. § 704 ..................................................................................................................................4, 16, 17, 20
Other Authorities
Robert A. Anthony, Interpretative Rules, Policy Statements, Guidances, Manuals, and the Like—Should
Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992)............................................23
Br. of the United States as Amicus Curiae,
University of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2012), No. 12-484 ...............................25
Br. for the United States as Amicus Curiae,
Vance v. Ball State, 133 S. Ct. 2434 (2012), No. 11-556 ................................................................ 24, 25
Notice 2006-50, 2006-25 I.R.B. 1141, 2006-1 C.B. 1141, 2006 WL 1452787 (June 19, 2006).............18
6 Charles Alan Wright, et al.,
FED. PRAC. & PROC. CIV. § 1476 (3d ed. 2013 supp.) .......................................................................... 1

v

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INTRODUCTION
Defendants want to have their cake and eat it too. On the one hand, they want to bully
employers into hiring felons on the basis of an unlawful interpretation of Title VII that the Equal
Employment Opportunity Commission (“EEOC” or “Commission”) adopted in contravention of
the Administrative Procedure Act (“APA”). If an employer refuses to fall in line, it faces abusive
investigations, sanctionable litigation tactics, and allegations of discrimination under the EEOC’s
Felon-Hiring Rule1 that the Sixth Circuit recently described as “frivolous” and “groundless.” EEOC v.
Peoplemark, Inc., 732 F.3d 584, 592 (6th Cir. 2013) (emphasis in original); see also id. at 595 (affirming
sanctions against EEOC for its abusive enforcement of the Felon-Hiring Rule).
Of course, EEOC would like to retain the coercive effects of the Felon-Hiring Rule without
risking another stinging rebuke on the merits. So it has mustered the audacity to tell the State of
Texas that the timing of this suit is “far from impeccable,” and that the largest employer in the
second-largest State in the Nation should be forced to wait until it too suffers the abusive and
sanctionable conduct that EEOC has unleashed on other violators of the rule.

MTD at 1.

Thankfully, fifty years of precedent under the APA and the ripeness doctrine foreclose the
Commission’s attempt to dodge judicial review of its administrative overreaching. The motion to
dismiss should be denied.
BACKGROUND
EEOC promulgated the Felon-Hiring Rule on April 25, 2012. See FAC Ex. A. The 2012
rule represents EEOC’s first attempt to formalize its felon-hiring policy in a standalone document.
Before 2012, the Commission’s view that Title VII somehow prohibits employers from refusing to
1 See EEOC, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII
of the Civil Rights Act of 1964, No. 915.002 (Apr. 25, 2012) (“Felon-Hiring Rule,” attached as Exhibit A to
the First Amended Complaint, “FAC”). The State construes EEOC’s motion to dismiss, ECF No. 16
(“MTD”), to apply equally to the FAC. See 6 CHARLES ALAN WRIGHT, ET AL., FED. PRAC. & PROC. CIV.
§ 1476 (3d ed. 2013 supp.). The FAC and this opposition together constitute the State’s response to that
motion.

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hire felons was relegated to the 605th section of the EEOC “Compliance Manual.” See El v.
SEPTA, 479 F.3d 232, 243 (3d Cir. 2007) (recounting that fact). And the courts routinely held that
the “Compliance Manual” was “not . . . entitled to great deference.” Id. at 244. That was so because
the manual was “terse” and rested on nothing more than EEOC’s administrative say-so, which it
asserted “without explanation, analysis, or authority.” Id. at 248.
So EEOC promulgated the Felon-Hiring Rule, which purports to afford the explanation and
analysis that the Third Circuit found lacking. The rule announces that “[a] policy or practice
requiring an automatic, across-the-board exclusion from all employment opportunities because of
any criminal conduct is inconsistent with the [various factors enumerated in the rule] because it does
not focus on the dangers of particular crimes and the risks in particular positions.” FAC Ex. A at
16. Instead of “across-the-board exclusion[s],” the Felon-Hiring Rule holds that employers must
afford felons “individualized assessments.” Id. at 18–20. If an employer fails to do so, the rule
binds EEOC’s staff to find that the no-felon policy is an unlawful employment practice. Id. at 3.
And the Commission expressly ruled that its interpretation of Title VII preempts any state law that
requires employers to apply across-the-board exclusions for felons. Id. at 24.
The State of Texas employs hundreds of thousands of people, and many of them are
employed by agencies (like the Texas Department of Public Safety, “DPS”) that impose across-theboard no-felon policies pursuant to state law.

See FAC ¶¶ 23–31.

DPS’s no-felon policy is

materially identical to the one that the Federal Bureau of Investigation uses. See FAC ¶ 24; id. Ex. B;
n.2, infra. But because DPS is a state law-enforcement agency rather than a federal one, it either
must violate state law or risk “frivolous” and “groundless” allegations of racial discrimination under the
Felon-Hiring Rule. Peoplemark, 732 F.3d at 592. And that risk is far from theoretical: EEOC
already has filed a “charge of discrimination” against DPS for applying the across-the-board nofelon policy required by state law. See FAC ¶ 37 & Ex. C.
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SUMMARY OF ARGUMENT
EEOC cannot seem to make up its mind. It desperately wants to force employers to
abandon their categorical no-felons policies, and it wants federal courts to afford deferential effect
to the thoroughness of its “enforcement guidance.” But when confronted with an APA suit by an
employer that cannot be bullied into compliance, EEOC all of sudden wants this Court to believe
that its Felon-Hiring Rule is just a bunch of precatory musings that cannot have more than a
contingent effect on anyone. Whatever else might be said about the Commission’s tactics, they do
not sum to a valid jurisdictional objection.
I.

The State has standing for two reasons. First, Texas employs hundreds of thousands

of people, and it receives thousands of job applications every year.

In processing those job

applications, the State’s agencies routinely apply the no-felons policies required by state law and
prohibited by the Felon-Hiring Rule. That conflict makes the State an “object” of the Commission’s
administrative action and easily satisfies the standing requirements of Article III. Any doubt about
the concreteness of the State’s injury is resolved by the fact that EEOC already has launched a
“charge of discrimination” against DPS for categorically refusing to hire felons.
Second, the State has standing because EEOC cannot attempt to both change the State’s
hiring policies and nonetheless object to the State’s standing to challenge that attempt. Both the
D.C. Circuit and the Seventh Circuit have rejected EEOC’s have-and-eat-its-cake strategy, and this
Court should do so too.
II.

The State’s claims are ripe. This is a facial challenge to EEOC’s rule, and as such, it

is quintessentially fit for review. The Commission’s principal argument to the contrary is that
further factual development is necessary to differentiate between the State’s lawful no-felons policies
(for example, those barring “a child predator [from] working at a school”) and its unlawful ones.
MTD at 16. But it is far too late to rehabilitate the Felon-Hiring Rule by suggesting that the EEOC
3

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was willing to recognize any exceptions — even commonsense exceptions — to its expansive view
of disparate impact. In fact, the Felon-Hiring Rule held that a preschool cannot impose Texas’s
across-the-board policy against hiring child predators. Factual development will do nothing to ease
the conflict between EEOC’s atextual interpretation of the law and Texas’s refusal to follow it.
III.
§ 704.

Finally, the Felon-Hiring Rule is a “final agency action” made reviewable by 5 U.S.C.

An unbroken line of cases dating back decades holds that “guidance” documents are

reviewable to the extent they bind the agency’s staff or force regulated entities to change their
behavior. The Felon-Hiring Rule does both.
The Commission’s sole counterargument is that the Felon-Hiring Rule is unreviewable
because it is not a “binding” “legislative rule.” In a decision that EEOC oddly neglects to mention,
the D.C. Circuit repudiated that argument. And the Commission cites no decision from any court
that ever has agreed with it. This Court should not be the first.
ARGUMENT
I.

THE STATE HAS STANDING
A.

The State’s Injuries Are Concrete, Traceable, and Redressable

The State easily satisfies the constitutional minimum for standing to challenge EEOC’s
Felon-Hiring Rule. Article III requires only an injury, caused by the agency, which a court can
redress. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). And when the plaintiff is
“an object of the [agency’s] action,” “there is ordinarily little question that the action . . . has caused
him injury, and that a judgment preventing . . . the action will redress it.” Id. at 561–62. Here, there
is no doubt that the State of Texas is “an object of the [EEOC’s] action.” The State employs
hundreds of thousands of people, see FAC ¶¶ 23–30, and as an employer, the State is squarely the
“object” of the Felon-Hiring Rule, see, e.g., FAC Ex. A at 8–20 (purporting to prohibit all employers
from using categorical no-felons policies). In fact, EEOC singled out employers like the State of
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Texas who categorically refuse to hire felons pursuant to state “laws and/or regulations that restrict
or prohibit the employment of individuals with records of certain criminal conduct.” Id. at 24.
Because the State-qua-employer is an “object” of the EEOC’s action, all three of the constitutional
standing requirements are easily satisfied. See Lujan, 504 U.S. at 561–62.
Those injuries could not be more concrete and certain. Cf. MTD at 12 (arguing the State’s
injury is “speculative”). For example, the Texas Department of Public Safety categorically refuses to
hire anyone convicted of any felony (and some misdemeanors). See FAC ¶ 24. And on November 1,
2013, EEOC sent a “charge of discrimination” to DPS for categorically refusing to hire a convicted
felon named William R. Smith. See id. ¶ 37 & Ex. C.
Mr. Smith applied to work as a DPS “Customer Service Representative,” a position that
would have given him access to a statewide database containing identifying information for 26
million Texans (including their names, addresses, dates of birth, social security numbers, and copies
of their birth certificates). FAC ¶ 37. In his job application, Mr. Smith disclosed a previous felony
conviction for the unauthorized use of a motor vehicle. FAC Ex. C at 2. Consistent with state law
and its policy judgment that convicted felons never should have access to sensitive information
regarding every man, woman, and child in the State, DPS categorically refused to consider Mr.
Smith’s application and rejected it without using any of the “individualized” factors that EEOC’s
rule commands. FAC ¶ 37. And because DPS refused to accede to EEOC’s unlawful interpretation
of Title VII, the State is presently on the receiving end of a “charge of discrimination.” Id.
Moreover, EEOC authorized Mr. Smith to bring a private lawsuit against DPS. See id.; FAC Ex. D.
That is more than sufficient to constitute a concrete “injury” that was caused by the unlawful FelonHiring Rule.

5

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B.

EEOC’s Counterarguments Are Meritless

1.

In all events, it does not matter whether EEOC, Defendant Holder, or a private

individual is threatening to enforce the Commission’s Felon-Hiring Rule. Compare MTD at 11–13
(arguing the opposite), with Owner-Operator Indep. Drivers Ass’n v. Federal Motor Carrier Safety Admin.,
656 F.3d 580, 58–86 (7th Cir. 2011) (considering and rejecting the same standing argument that
Defendants raise here). In Owner-Operator, truck drivers challenged a rule that regulated the number
of hours they could operate their vehicles, and the agency argued that the plaintiffs’ injury was
“speculative” because they were not presently subject to an enforcement action. Id. at 586. The
court of appeals rejected the agency’s standing objection because it was part of the federal agency’s
strategy to eat cake and have it too:
The Agency’s standing argument . . . ignores the very idea that it advances to justify
adopting the [ ] rule in the first place: a punitive stick (it says) is necessary to increase
compliance with [the agency’s] regulations. The [agency’s] rule aims to alter truck
drivers’ behavior now to avoid a remedial directive in the future. . . . In the end, it
strikes us as odd that the Agency is arguing that it must have a strict rule now to get
truck drivers to be more compliant with [the agency’s] rules, but at the same time it is
asserting that these rules are not meant to change anyone’s immediate behavior
enough to confer standing to challenge that regulation.
Id. at 586 (emphasis in original); see also Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 518 (D.C.
Cir. 2009) (finding it “more than a little ironic” that a federal agency “would suggest Petitioners lack
standing and then, later in the same brief,” label the petitioner a “prime example” of the “very
problem the [r]ule was intended to address” (internal quotation marks omitted)).
So too here. EEOC apparently thinks that Texas’s categorical refusal to hire felons for
certain jobs — like those allowing access to statewide databases containing sensitive personal
information for all 26 million men, women, and children in the State — necessitated a rule to
condemn the practice as “unlawful.” See FAC Ex. A. The Commission asserts an urgent “interest”
in stopping the State from following state law insofar as it categorically bars felons from
employment, id. at 6, 24, and the Commission wields “a punitive stick . . . to increase compliance
6

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with” its Felon-Hiring Rule, Owner-Operator, 656 F.3d at 586; see FAC ¶¶ 17–22 (listing examples of
EEOC’s punitive enforcement tactics). It is “more than a little ironic,” Stilwell, 569 F.3d at 518, to
claim that the State nonetheless incurs no injury from the EEOC’s efforts to preempt Texas law and
to change the hiring policies for the State’s police officers, youth-correction officers, statesupported-living-center employees, General Land Office employees, lottery officials, game wardens,
and school teachers.
2.

For at least three independent reasons, it is facile to suggest that Title VII, not

EEOC’s Felon-Hiring Rule, preempts Texas’s no-felons policies. Cf. MTD at 10–11. First, Title
VII says nothing about an employer’s categorical refusal to hire felons.

To the extent that

categorical refusal constitutes an unlawful employment practice, it is solely on account of EEOC’s
say-so in the Felon-Hiring Rule. Compare FAC Ex. A at 9, 18–20 (purporting to prohibit categorical
no-felon policies and requiring “individualized assessments” of all felons for all jobs), with 42 U.S.C.
§ 2000e-2(k) (discussing disparate impact without mentioning categorical no-felon policies or
requiring “individualized assessments” of felons’ job applications).
Second, Title VII says nothing about whether EEOC’s staff should impose abusive and
sanctionable litigations tactics — under the guise of an administrative “investigation” — when an
employer categorically refuses to hire felons.

Again, that binding directive comes solely from the

Felon-Hiring Rule and its enforcement by EEOC staff. It is the Commission’s effort to launch
“frivolous” and “groundless” allegations against employers, Peoplemark, 732 F.3d at 592 — and its
promise to bring similar suits in the future, see FAC ¶ 35 — that injures the State.
Third and finally, it is always true that Congress’s statute — rather than the agency’s
interpretation of it — carries preemptive force. See, e.g., Wyeth v. Levine, 555 U.S. 555, 573 (2009)
(rejecting “an overbroad view of an agency’s power to pre-empt state law” because congressional
intent to preempt is all that matters); MTD at 11 (asserting that obvious fact). But that does not
7

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mean that regulated entities lack standing when agencies nonetheless purport to promulgate rules
that preempt state law. See, e.g., Illinois Dep’t of Transp. v. Hinson, 122 F.3d 370, 372 (7th Cir. 1997)
(State has standing where it “complains that a federal regulation will preempt one of the state’s
laws”); Alaska v. United States Dep’t of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989) (agreeing that the
State has standing to seek declaratory and injunctive relief “because DOT claims that its rules
preempt state consumer protection statutes, [and therefore] the States have suffered injury to their
sovereign power to enforce state law”); cf. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592,
607–08 (1982) (stating, in the context of state standing in parens patriae actions, that States have an
“interest in securing observance of the terms under which it participates in the federal system”).
The bottom line is that the federal agency has arrogated to itself the power to divine a Felon-Hiring
Rule that has no basis in the text of Title VII, and that federal agency has directed the State to
disregard duly enacted state laws and conform its behavior to the federal rule. See FAC Ex. A at 24.
That is more than sufficient to create an “injury” that confers standing.
II.

THE STATE’S CLAIMS ARE RIPE
A.

The State’s Claims Are Presumptively Reviewable, And EEOC Does Not
Attempt To Rebut That Presumption

EEOC’s ripeness objections also are easily dismissed. For at least fifty years, the Supreme
Court has held that it is the agency’s burden to prove that a statute precludes pre-enforcement
review of its rule:
The first question we consider is whether Congress . . . intended to forbid preenforcement review of this sort of regulation promulgated by the [agency]. The
question is phrased in terms of ‘prohibition’ rather than ‘authorization’ because a
survey of our cases shows that judicial review of a final agency action by an aggrieved
person will not be cut off unless there is persuasive reason to believe that such was
the purpose of Congress.
Abbott Labs. v. Gardner, 387 U.S. 136, 139–40 (1967). The Court emphasized that the agency’s
burden is particularly heavy because the availability of pre-enforcement review “ha[s] been
8

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reinforced by the enactment of the Administrative Procedure Act, which embodies the basic
presumption of judicial review.” Id. at 140. The Court further held that the APA “manifests a
congressional intention that [its judicial-review provisions] cover a broad spectrum of administrative
actions,” and that the APA’s “ ‘generous review provisions’ must be given a ‘hospitable’
interpretation.” Id. at 140–41 (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51 (1955)).
Where as here Congress did nothing to prohibit the State from seeking pre-enforcement
review of the Felon-Hiring Rule, the ripeness inquiry all but disappears, and pre-enforcement review
is “the norm.” See, e.g., Owner-Operator, 656 F.3d at 586 (“In the decades since Abbott Laboratories,
pre-enforcement review of final rules has become the norm.”). To create an exception to that norm,
EEOC must prove that the issues somehow are not fit for judicial review and that the balance of
hardships somehow tips in EEOC’s favor. Abbott Labs., 387 U.S. at 149; Sabre, Inc. v. Department of
Transp., 429 F.3d 1113, 1119–20 (D.C. Cir. 2005); Owner-Operator, 656 F.3d at 586–87.

The

Commission cannot meet that standard.
1.
a.

The State’s claims are fit for review

First, the State’s claims are fit for review because they are purely legal, facial

challenges to the Felon-Hiring Rule. The fitness-for-review question turns on whether the case
“would benefit from further factual development” and “whether judicial intervention would
inappropriately interfere with further administrative action.” Ohio Forestry Ass’n v. Sierra Club, 523
U.S. 726, 733 (1998); see also Whitman v. American Trucking Ass’ns, 531 U.S. 457, 479–80 (2001). These
considerations protect “the agency’s interest in crystallizing its policy before that policy is subjected
to judicial review and the court’s interests in avoiding unnecessary adjudication and in deciding
issues in a concrete setting.” Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985).
Here, Texas is not seeking a declaration that its no-felon policies “are, and always will be,
lawful hiring practices” because they never create statistical disparities in “the relevant labor market.”
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MTD at 14–15. Rather, the State is seeking a declaration that no-felon policies never can create
unlawful disparate impacts because (a) they always are justified by business necessity and jobrelatedness (Count I); (b) Congress specifically disclaimed EEOC’s authority to promulgate a
contrary rule (Count II); and (c) the private-party disparate-impact suits contemplated by EEOC’s
Felon-Hiring Rule are unconstitutional (Count III). None of those claims “require[ ] the Court to
answer various factual questions.” MTD at 15.
To the contrary, there are only two facts that matter. First, state law and policy require many
Texas employers to impose categorical bans against convicted felons who apply for jobs. See FAC
¶¶ 23–31. And second, the Defendants believe that the State’s policies are unlawful because they
never allow the State to make “individualized” and race-conscious assessments of job applicants that
EEOC somehow thinks Title VII requires. See FAC Ex. A at 18–20. Thus, the case poses a conflict
of two mutually incompatible interpretations of Title VII. As the D.C. Circuit held in the same
situation:
[T]he substantive issues [plaintiff] raises are undoubtedly ‘purely legal’ in the relevant
sense. They turn on questions of statutory construction, and the interpretations
chosen by the [agency] and proposed by [plaintiff] both constitute bright-line rules,
impervious, so far as appears, to factual variation. This in itself largely answers the
question whether delay might afford additional ‘concreteness’; it would not.
Teva Pharms. USA, Inc. v. Sebelius, 595 F.3d 1303, 1308–09 (D.C. Cir. 2010) (internal citation and
alteration omitted); see also, e.g., Shays v. FEC, 414 F.3d 76, 95 (D.C. Cir. 2005).
b.

It is too late for the EEOC’s lawyers to manufacture the need for further factual

development by asserting nuances that the Commission itself rejected in the Felon-Hiring Rule. See
Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166–67 (2012) (rejecting the agency’s
interpretation of its own rule as “nothing more than a convenient litigating position,” and a “post hoc
rationalization advanced by an agency seeking to defend past agency action against attack” (internal
quotation marks and alteration omitted)). For example, the Commission’s motion to dismiss asserts
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(at 16) that “[n]o one wants a child predator working at a school” — presumably in an effort to
seem reasonable and offer one (if only one) safe harbor for Texas’s categorical no-felon policies.
But EEOC’s Felon-Hiring Rule says the exact opposite.
The rule offers the hypothetical example of “Elijah,” an African American man who wants
to bring a disparate-impact suit against a preschool for refusing to hire him on account of his felony
conviction for “indecent exposure two years ago.” FAC Ex. A at 24. Even on those facts, the
Felon-Hiring Rule says that the preschool cannot impose a categorical ban against hiring convicted
sex offenders like Elijah. Id. at 18–20. To the contrary, EEOC would “conduct[ ] an investigation”
— thus raising the specter of the Commission’s frivolous and sanctionable enforcement tactics, see
Peoplemark, 732 F.3d at 592 — and force the preschool to carry its burden to prove “the exclusion is
job related for the position in question and consistent with business necessity because it addresses
serious safety risks of employment in a position involving regular contact with children.” FAC Ex.
A at 24. And if the preschool cannot carry its burden to show that (a) Elijah would have “regular
contact” with the children and that (b) Elijah’s indecent-exposure conviction is sufficiently recent to
be probative of his riskiness as a child predator, EEOC staff would be bound by the Felon-Hiring
Rule to find an unlawful employment practice. See id. at 15, 17, 24. While EEOC’s lawyers now
appear to recognize the commonsense proposition that “[n]o one” would want Elijah to work in the
preschool under any set of circumstances, MTD at 16, the Felon-Hiring Rule says otherwise.
2.
a.

The balance of hardships tips decidedly in the State’s favor

EEOC has pointed to no institutional interest in delaying resolution of this case.

“[T]he court has — in accordance with the [APA’s] presumption of reviewability — repeatedly held
that absent institutional interests favoring the postponement of review, a petitioner need not show
that delay would impose individual hardship to show ripeness.” Sabre, 429 F.3d at 1120. In Sabre,
the Department of Transportation asserted jurisdiction over certain “ticket agents,” and it stated that
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it would take “appropriate actions” in the future to enforce the law against unlawful “ticket agents.”
Id. at 1117. Sabre sought pre-enforcement review, and the department objected on ripeness grounds
because it was unclear whether Sabre was covered by the rule, and even it if was, what “appropriate
actions” the department might want to take. Id. at 1119. The D.C. Circuit rejected the ripeness
objection because “[t]he Department has failed to offer plausible reasons why it has an institutional
interest in postponing review.” Id. at 1120. While Sabre had no obligation to show “hardship,” it
nonetheless could do so: in particular, Sabre claimed that “a high probability of adverse government
action” against it as a “ticket agent” would force Sabre to abandon “marketing plans, which it could
otherwise implement presumably at considerable profit.” Id. at 1118–20.
This is an a fortiori case. There is no dispute whether the State of Texas is regulated by the
Felon-Hiring Rule. Cf. Sabre, 429 F.3d at 1118 (noting whole dispute was whether Sabre fell within
the ambit of department’s “ticket agent” rule). There is no dispute whether the State of Texas is in
violation of the Felon-Hiring Rule. Cf. id. at 1117 (noting department’s view that Sabre remained
“free to operate its business as it wishes”). Plus, there is no dispute that the State of Texas stands to
lose much more than Sabre did, and that the State’s “hardship” is thus much higher. While Sabre
faced only the potential for “appropriate actions” from a department that threatened an unspecified
portion of the company’s profit margins, id., the State faces the promise of investigations by an
EEOC with a proven track record of “frivolous” and “groundless” enforcement tactics, Peoplemark, 732
F.3d at 592; the reputational harm associated with allegations of racial discrimination; and
unconstitutional damages actions by individuals like William R. Smith, which infringe Texas’s
sovereign immunity.
b.

Moreover, the Felon-Hiring Rule places the State and its constituent agencies on the

horns of a dilemma, which is more than sufficient to obviate any ripeness concerns. For example, in
Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir. 2008), the Fifth Circuit held that the
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challenged ordinance was ripe for judicial review because it forced owners and operators of public
places to choose between complying with an allegedly invalid law or to risk a $2000 fine. See also
Abbott Labs., 387 U.S. at 152 (“These regulations purport to give an authoritative interpretation of a
statutory provision that has a direct effect on the day-to-day business of all prescription drug
companies; its promulgation puts petitioners in a dilemma that it was the very purpose of the
Declaratory Judgment Act to ameliorate.”); Ohio Forestry, 523 U.S. at 734 (“hardship” can arise from
purely legal harms or the harm of being “force[d] . . . to modify [one’s] behavior in order to avoid
future adverse consequences”); Texas v. United States, 497 F.3d 491, 499 (5th Cir. 2007) (“If Texas
cannot challenge the Procedures in this lawsuit, the State is forced to choose one of two undesirable
options: participate in an allegedly invalid process that eliminates a procedural safeguard promised
by Congress, or eschew the process with the hope of invalidating it in the future, which risks the
approval of gaming procedures in which the state had no input.”); Reckitt Benckiser v. EPA, 613 F.3d
1131, 1136–41 (D.C. Cir. 2010) (holding ripe agency’s letter asserting authority to bring future
enforcement proceedings because it creates “compliance ‘dilemma’ ” for the company).
The dilemma caused by the Felon-Hiring Rule is even starker because EEOC is trying to do
much more than levy a $2,000 fine. The whole point of its Felon-Hiring Rule is to coerce the State
into abandoning the hiring policies adopted by the Texas Legislature by threatening frivolous
allegations of discrimination and abusive enforcement actions in “high-profile” cases. FAC ¶ 35; see
Owner-Operator, 656 F.3d at 586–87 (finding ripeness where whole point of rule is to force regulated
entities to change their behaviors); Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1205 (D.C.
Cir. 1998) (finding ripeness where agency action forces petitioners to “change their behavior or risk
costly sanctions”). That effort to modify the State’s behavior independently suffices to make the
case ripe.

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c.

Page 20 of 34 PageID 386

Against all of that, EEOC can point to no “institutional interest” in delaying

resolution of this case. Sabre, 429 F.3d at 1120. An agency plausibly can invoke the ripeness
doctrine if its rule is tentative or preliminary: “the [ripeness] doctrine enables agencies to deliberate
and craft policy free of judicial interference until administrative action has a direct and immediate
impact. Judicial intervention into agency decisionmaking at an earlier stage denies the agency an
opportunity to correct its own mistakes and to apply its expertise.” Ciba-Geigy Corp. v. EPA, 801
F.2d 430, 434 (D.C. Cir. 1986). But those concerns are inapposite here. EEOC admits that it
already has deliberated and (by a formal 4-1 vote) formalized its policy choice in the Felon-Hiring
Rule. And far from “correct[ing] its own mistakes,” EEOC has doubled down on the rule after the
Third Circuit dismissed the Commission’s interpretation of Title VII as “terse” and “provid[ing]
nothing of substance.” El, 479 F.3d at 248. Thus, there is no evidence that EEOC will recognize
the error of its ways and rescind the Felon-Hiring Rule without this Court’s intervention.
B.

EEOC’s Counterarguments Lack Merit

EEOC offers three counterarguments, each of which is easily dismissed.
1.

First, EEOC shrugs off the pre-enforcement hardships that the Felon-Hiring Rule

imposes on the State of Texas. Don’t worry, it says, because it is possible that the State’s no-felons
policies do not “ha[ve] a statistically significant differential effect . . . on a protected class.” MTD at
15. And even if the policies create a disparate impact based on race, EEOC says that it is possible
that its staff could conduct “a fact-specific inquiry” for job-relatedness and business necessity and
determine, in its administrative grace, that it can bless Texas’s policies anyway. Id. at 17.
Talk about cold comfort. What EEOC cannot bring itself to acknowledge is that the
answers to its “fact-specific inquir[ies]” are knowable only after the Commission brings the full
weight of its enforcement apparatus down on employers’ shoulders. That is why the Commission
refuses now to approve any of the State’s categorical no-felons policies — even for jobs like State
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Troopers.2 And that means employers like Texas have to decide whether to keep their no-felon
policies and risk EEOC enforcement actions — replete with “frivolous” and “groundless” allegations of
racial discrimination, Peoplemark, 732 F.3d at 592 — or instead to jettison the policies and save
themselves from bruising run-ins with the Commission and its staff. Staring down the barrel of the
Commission’s Felon-Hiring Rule, many employers would choose the latter. But either way, EEOC
cannot put employers to that choice while also claiming that the dispute is not ripe.
2.

Next, EEOC argues that Count III is unripe because “[n]umerous contingencies

would have to come to pass for [the State] to face” a private-damages suit from a felon who alleges
that Texas’s categorical no-felons policies violate the Felon-Hiring Rule. MTD at 19. Again, that
perversion of the ripeness doctrine runs against 50 years of Supreme Court precedent:
[A]s Abbott Laboratories itself demonstrated, hardship need not take the form of an
actual enforcement action; the threat of enforcement is sufficient because the law is
in force the moment it becomes effective and a person made to live in the shadow of
a law that she believes to be invalid should not be compelled to wait and see if a
remedial action is coming.
Owner-Operator, 656 F.3d at 586 (citing Abbott Labs., 387 U.S. at 150–54). And in all events, as noted
above, the State faces a “concrete threat” of litigation from William R. Smith. MTD at 20; see supra
p.5; FAC ¶ 37 & Exs. C–D.
3.

Finally, EEOC argues that Count III is unripe because, even without damages

actions by individuals like William R. Smith, the State of Texas could be sued under the FelonHiring Rule by others (like the EEOC itself). MTD at 20–21. That proves far too much because
That refusal is particularly noteworthy because EEOC has no problem with federal law-enforcement
agencies that apply categorical no-felons policies. For example, the FBI says that “conviction of a felony”
“will automatically disqualify” applicants for all jobs with the Bureau. FAC Ex. B at 1 (emphasis added). That
means that any felony — of any degree of seriousness, of any age, and of any degree of job-relatedness —
“will automatically disqualify” the applicant from the most menial job in an agency with 36,000 employees.
And the Felon-Hiring Rule says that is ok. See FAC Ex. A at 20–23. But somehow, the same rule says that
the State of Texas cannot impose the FBI’s hiring policy on the men and women charged with carrying
firearms and serving as peace officers on the front line of the State’s public-safety battlefield. See MTD at 16–
17 (arguing that the State cannot impose categorical no-hiring policies against felons convicted of “unlicensed
acupuncture” and “littering in a cave,” even though the FBI presumably can).
2

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the exact same objection would render unripe every comparable violation of the Eleventh
Amendment. For example, in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the Court held
that the Eleventh Amendment barred private damages actions against the State of Florida under the
Indian Gaming Regulatory Act. The Court went out of its way to recognize that “[t]he Federal
Government can bring suit in federal court against a State” under the Act, id. at 71 n.14 (citing
United States v. Texas, 143 U.S. 621, 644–45 (1892)) — and that fact did nothing to render unripe the
State’s objections to the private party’s suit under the same statute. The federal government likewise
can sue the States to enforce the Religious Freedom Restoration Act, the Age Discrimination in
Employment Act, and the Americans with Disabilities Act. But again, that did nothing to render
unripe the State’s objections to private parties’ suits under all three statutes, nor did it prevent the
Court from holding that those suits were unconstitutional. See City of Boerne v. Flores, 521 U.S. 507
(1997) (RFRA); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (ADEA); Board of Trs. Univ. of Ala. v.
Garrett, 531 U.S. 356 (2001) (title I of the ADA); accord Sabre, 429 F.3d at 1121 (finding irrelevant fact
that Sabre had independent obligation not to commit deceptive trade practices). If EEOC’s ripeness
objection was correct, all of those landmark Eleventh Amendment decisions would be wrong.
III.

THE FELON-HIRING RULE CONSTITUTES FINAL AGENCY ACTION
Finally, the Felon-Hiring Rule constitutes “final agency action” reviewable under 5 U.S.C.

§ 704 (“Section 704”). EEOC does not dispute that the rule is an “agency action,” which it took
through a formal 4-1 vote. See FAC ¶ 10. And it does not dispute that the rule is “final” in every
conceivable meaning of the word; the Felon-Hiring Rule undisputedly represents the culmination of
the Commission’s decisionmaking process and hence the EEOC’s “final” (if misguided)
pronouncement on the issue. Instead, the Commission appears to think that the Felon-Hiring Rule
does not constitute “final agency action” because “no ‘legal consequences’ flow from it.” MTD at 7.

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Again, the Commission wants to have its cake and eat it too. Employers like Peoplemark —
that have been on the receiving end of EEOC’s sanctionable conduct and frivolous allegations of
racial discrimination under the Felon-Hiring Rule — obviously would disagree that “no ‘legal
consequences’ flow[ed]” from EEOC’s deeply flawed interpretation of Title VII.

And the

Commission routinely goes into federal court and demands “deference” for its interpretation of Title
VII; just last Term for example, EEOC twice urged the Supreme Court of the United States to afford
legal effect to guidance documents that were materially identical to the Felon-Hiring Rule. But when
it comes to defending a facial challenge to its actions, EEOC all of a sudden thinks its work isn’t
worth the paper it was printed on. Its gamesmanship runs contrary to decades’ worth of precedent
under the APA and should be rejected.
A.

The Felon-Hiring Rule Is Reviewable Under Section 704

The Supreme Court has held that agency actions are “final” and hence reviewable under
Section 704 where they mark the “consummation” of the agency’s decisionmaking progress, and
“legal consequences will flow” from what the agency did. Bennett v. Spear, 520 U.S. 154, 177–78
(1997). The Commission does not contest that its Felon-Hiring Rule marks the “consummation” of
its rulemaking process, see MTD at 7; accordingly, its Section 704 objection boils down to whether
the rule generates “legal consequences.” It does.
1.

The courts long have held that agency “guidance” documents like the Felon-Hiring

Rule constitute final and reviewable agency actions under Section 704. For example, in Cohen v.
United States, 578 F.3d 1 (D.C. Cir. 2009), the court held that an IRS “guidance” document entitled
“Notice 2006-50” constituted final agency action.3

That document “announce[d]” the IRS’s

interpretation of the Tax Code and “provide[d] related guidance to taxpayers and collectors.”

The D.C. Circuit subsequently granted rehearing en banc on other grounds and affirmed the panel’s
decision. See 650 F.3d 717 (D.C. Cir. 2011) (en banc); see also id. at 735 (noting that the en banc court saw no
need to reconsider the panel’s analysis under Section 704).
3

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Notice 2006-50, 2006-25 I.R.B. 1141, 2006-1 C.B. 1141, 2006 WL 1452787 (June 19, 2006). That
“guidance” included instructions on how taxpayers could seek certain refunds, it established a “safe
harbor” for refunds, and it created administrative procedures for aggrieved taxpayers.

See id.

Critically, legal consequences flowed from the IRS’s “guidance” insofar as it used “mandatory words
like ‘will’ instead of permissive words like ‘may’ ” to describe how the agency’s staff would process
refund claims. Cohen, 578 F.3d at 7; see also Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir.
1997) (“The primary distinction between a substantive rule — really any rule — and a general
statement of policy . . . turns on whether an agency intends to bind itself to a particular legal
position.”); American Bus Ass’n v. United States, 627 F.2d 525, 532 (D.C. Cir. 1980) (similar). Like the
EEOC here, the IRS tried to insulate its rule from judicial review by backing away from it and
disclaiming it as nothing more than worthless words; but the D.C. Circuit held “[t]hat’s just mean”
because it “places taxpayers in a virtual house of mirrors” where they can’t figure out which of the
agency’s instructions to heed. Cohen, 578 F.3d at 9.
Likewise, the court held that an agency’s “guidance” document constituted final agency
action in Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000). There the agency used its
guidance to announce a “multi-factor, case-by-case analysis” that EPA’s staff would apply to
determine the adequacy of States’ air-quality monitoring standards. Id. at 1022. The court found
irrelevant that answers to EPA’s “case-by-case analysis” turned on facts that were unknowable ex
ante. Id. at 1022–23. All that mattered, the court held, is that the agency directed States to search
their laws and policies, to find standards that conflicted with EPA’s analysis of the Clean Air Act,
and to replace them in accordance with the “guidance” document. Id. at 1023. The court also
found irrelevant the fact that EPA included the following disclaimer at the end of its document:
“ ‘The policies set forth in this paper are intended solely as guidance, do not represent final Agency
action, and cannot be relied upon to create any rights enforceable by any party.’ ” Id. (quoting
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guidance document). Even that disclaimer did nothing to render the guidance non-final under
Section 704 because legal consequences nonetheless flowed from it:
Insofar as the “policies” mentioned in the disclaimer consist of requiring State
permitting authorities to search for deficiencies in existing monitoring regulations
and replace them through terms and conditions of a permit, “rights” may not be
created but “obligations” certainly are — obligations on the part of the State
regulators and those they regulate. At any rate, the entire Guidance, from beginning
to end — except the [disclaimer] paragraph — reads like a ukase. It commands, it
requires, it orders, it dictates. Through the Guidance, EPA has given the States their
“marching orders” and EPA expects the States to fall in line.
Id.
The court of appeals yet again held that an administrative guidance document constituted
final and reviewable agency action in Barrick Goldstrike Mines v. Browner, 215 F.3d 45 (D.C. Cir. 2000).
There the agency’s guidance interpreted an environmental statute to allow metal-mining companies
to release a de minimis level of toxic chemicals without triggering various statutory reporting
requirements.

If Barrick and other mines failed to conform to the statutory interpretation

announced in the guidance, the agency could bring enforcement actions against them. Id. at 47–48.
EPA tried to avoid Barrick’s facial challenge to the guidance by walking away from it as nonbinding, but the D.C. Circuit sternly rebuked that about-face: “That the issuance of a guideline or
guidance may constitute final agency action has been settled in this circuit for many years.” Id. at 48
(citing, inter alia, Better Gov’t Ass’n v. Department of State, 780 F.2d 86 (D.C. Cir. 1986)); see also Better
Gov’t, 780 F.2d at 93 (rejecting proposition that agency can escape judicial review under Section 704
by labeling its rule an “informal” guidance document). And the court concluded that Section 704’s
final-agency-action requirement was satisfied because the guidance bound the agency’s staff in its
application of the de minimis exception to Barrick’s chemicals. 215 F.3d at 48 (“Here there is no
doubt that EPA will refuse to apply the de minimis exception to Barrick’s waste rock and that its
refusal to do so has legal consequences — namely, that Barrick is bound to keep track of its
movement of waste rock and report the movements as releases of toxic substances.”); see also NRDC
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v. EPA, 643 F.3d 311, 319–20 (D.C. Cir. 2011) (“guidance” document constitutes final agency action
reviewable under Section 704 insofar as it restrains administrative staff ’s discretion).
And, at the risk of belaboring the point, the regional circuits uniformly have interpreted
Section 704 likewise to extend to “guidance” documents like the Felon-Hiring Rule. For example, in
Manufactured Housing Institute v. EPA, 467 F.3d 391 (4th Cir. 2006), the court of appeals held that a
“policy” “memorandum” was reviewable as final agency action based on the agency’s threatened
enforcement of it. The policy memorandum enunciated a list of factors that States should use to
determine, on a “case-by-case” basis, whether a particular housing complex is “large” and thus
excludable from a general ban on selling water to tenants. Id. at 397. Following a familiar pattern,
the agency tried to walk away from the policy in court, shrugging off its guidance as “just a
suggestion” that carries no binding effect and that “leaves decisions to the States on a case-by-case
basis.” Id. The court rejected the agency’s backpedalling out of hand because “EPA’s threats levied
against at least two States regarding their [water] oversight programs prove that States are not free to
treat this EPA policy as a mere suggestion.” Id. Given those threats — and the home-builders’
“fear of subjecting themselves to EPA regulations” — the court found it “self-evident” that the
guidance document “gives rise to legal rights and consequences.” Id. at 398; see also Atchison, Topeka
& Santa Fe Ry. v. Pena, 44 F.3d 437, 441 (7th Cir. 1994) (holding that a letter from the agency’s chief
counsel constituted final agency action because it “made absolutely clear that [agency staff] would
enforce the Act in accordance with its new interpretation, thereby compelling the railroads to alter
their operations to comply with the [agency’s] directive or face stiff penalties for noncompliance”).
2.

Compared to Cohen, Syncor, American Bus, Appalachian Power, Barrick, NRDC,

Manufactured Housing, and Atchison, this is an easy case. The Felon-Hiring Rule includes page after
page of the unconditional and “mandatory” language that so often is “decisive” of the Section 704
issue. Cohen, 578 F.3d at 7; see, e.g., FAC ¶ 13; FAC Ex. A at 8 (“EEOC would find reasonable cause
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to believe that discrimination occurred.”); id. at 10 (EEOC “will” “investigate” “criminal record
exclusions”); id. (“The Commission will assess relevant evidence when making a determination of
disparate impact, including [various specific factors].”); id. (“An employer’s evidence of a racially
balanced workforce will not be enough to disprove disparate impact.”); id. (“[I]n determining
disparate impact, the Commission will assess the probative value of an employer’s applicant data.”);
id. (“[T]he Commission will closely consider whether an employer has a reputation in the community
for excluding individuals with criminal records.”); id. (“The Commission will determine the
persuasiveness of such evidence on a case-by-case basis.”); id. at 12 (“[A]n exclusion based on an
arrest, in itself, is not job related and consistent with business necessity.”); id. (“[E]mployers [may]
not [ ] rely on arrest records” as “proof of criminal conduct.”); id. (“[A]n arrest record standing alone
may not be used to deny an employment opportunity.”); id. (“EEOC would find reasonable cause to
believe that his employer violated Title VII.”); id. at 14 (“To establish that a criminal conduct
exclusion that has a disparate impact is job related and consistent with business necessity under Title
VII, the employer needs to show that the policy operates to effectively link specific criminal
conduct, and its dangers, with the risks inherent in the duties of a particular position.”); id. (“Such a
screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight
nexus to the position in question.”); id. at 15 (“Absent a validation study that meets the Uniform
Guidelines’ standards, the [specifically enumerated] factors provide the starting point for analyzing
how specific criminal conduct may be linked to particular positions.”); id. (“Careful consideration of
the nature and gravity of the offense or conduct is the first step in determining whether a specific
crime may be relevant to concerns about risks in a particular position.”); id. (“Whether the duration
of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on
the particular facts and circumstances of each case.”); id. at 16 (“[I]t is important to identify the
particular job(s) subject to the exclusion.”); id. at 17 (“EEOC concludes that there is reasonable
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cause to believe that the [employer’s] policy” violates the Felon-Hiring Rule.); id. at 20 (“EEOC
finds reasonable cause to believe that Title VII was violated.”); id. at 21 (“EEOC finds that the
policy is” unlawful.). And the EEOC went out of its way to condemn categorical no-felons policies
like Texas’s in mandatory terms: “A policy or practice requiring an automatic, across-the-board
exclusion from all employment opportunities because of any criminal conduct is inconsistent with
the [enumerated] factors because it does not focus on the dangers of particular crimes and the risks
in particular positions.” Id. at 16; see also id. (“EEOC would find reasonable cause to believe that the
blanket exclusion was not job related and consistent with business necessity.”). And an entire
section of the Felon-Hiring Rule prohibits Texas from disqualifying felons under state law, even
when the exact same hiring policy would be lawful if imposed under federal law. See id. at 24; FAC
¶ 14; supra n.2. In short, “the entire Guidance, from beginning to end . . .[,] reads like a ukase. It
commands, it requires, it orders, it dictates.” Appalachian Power, 208 F.3d at 1023.
But the legal consequences that flow from the Felon-Hiring Rule do not end there. The
Commission expressly intended the rule to bind “EEOC staff who are investigating discrimination
charges involving the use of criminal records in employment decisions.” FAC Ex. A at 3; see Cohen,
578 F.3d at 7 (agency’s intent to bind staff makes rule reviewable under Section 704); Barrick, 215
F.3d at 48; Appalachian Power, 208 F.3d at 1023 (same); NRDC, 643 F.3d at 319–20 (same); Syncor,
127 F.3d at 94 (same); American Bus, 627 F.2d at 532 (similar). Moreover, EEOC’s rule has direct
legal consequences — that bind both the Commission’s staff and the Nation’s employers — because
it creates two safe harbors. See Ex. A at 2; 14; Cohen, 578 F.3d at 7 (finding safe harbors probative of
finality of agency action). The fact that the Felon-Hiring Rule directs employers to apply a list of
enumerated factors, which EEOC will review on a “case-by-case basis,” FAC Ex. A at 10, further
supports reviewability of the Commission’s final agency action, Appalachian Power, 208 F.3d at 1022–
23; Manufactured Housing, 467 F.3d at 397. Finally, EEOC could not avoid the finality of the Felon22

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Page 29 of 34 PageID 395

Hiring Rule even if it had included a boilerplate disclaimer or an inaccurate label for its action, see
Appalachian Power, 208 F.3d at 1023; Barrick, 215 F.3d at 48; Better Government, 780 F.2d at 93; but the
fact that the rule does not attempt that feint makes it even easier than the cases above.
B.

EEOC’s Counterarguments Lack Merit

Against all of that, EEOC offers a single, solitary counterargument: it says the Felon-Hiring
Rule is not “final” because it is not “binding.” To be clear, the Commission does not contest that its
rule is “binding” in the practical sense — that is, that the rule binds EEOC’s staff and the Nation’s
employers. See Part III.A, supra. Rather, EEOC contends that the Felon-Hiring Rule is not
“binding” in the sense that it does not carry the “force of law.” MTD at 6–10. But the D.C. Circuit
expressly has rejected the argument that Section 704 is limited to agency actions that carry the force
of law — a fact that the Commission oddly but conveniently neglects to mention.
In Appalachian Power, the agency made the exact same argument under Section 704 that
EEOC makes here. See 208 F.3d at 1020. It argued that its guidance document was not a “binding”
“legislative rule” because it had not gone through notice-and-comment rulemaking, cf. United States v.
Mead Corp., 533 U.S. 218, 229–31 (2001), and that Section 704 withholds judicial review from any
agency action that does not qualify as a “legislative rule.” That argument has no basis in the text of
Section 704, and the D.C. Circuit rejected it in emphatic terms:
[W]e have . . . recognized that an agency’s other pronouncements can, as a practical
matter, have a binding effect. If an agency acts as if a document issued at
headquarters is controlling in the field, if it treats the document in the same manner
as it treats a legislative rule, if it bases enforcement actions on the policies or
interpretations formulated in the document, if it leads private parties or State
permitting authorities to believe that it will declare permits invalid unless they
comply with the terms of the document, then the agency’s document is for all
practical purposes “binding.”
Appalachian Power, 208 F.3d at 1021 (citing McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1321
(D.C. Cir. 1988); Robert A. Anthony, Interpretative Rules, Policy Statements, Guidances, Manuals, and the
Like—Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311, 1328–29 (1992)).
23

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For the same reason, AT&T v. EEOC, 270 F.3d 973 (D.C. Cir. 2001), does nothing to help
EEOC here. In that case, AT&T conceded that it could point to no specific action (like the FelonHiring Rule) that EEOC had taken.

Id. at 975 (noting that AT&T instead relied on the

Commission’s “entire course of . . . actions with respect to the Company’s service credit policy”); cf.
Lujan, 504 U.S. at 568 (parties cannot bring “generalized” and “programmatic” challenges to
government action). Much less could AT&T point to anything that EEOC had done that bound its
staff ’s discretion; anything that “shed light upon the Commission’s intentions” to enforce its views
against AT&T; or anything that forced employers to change their policies. Id. at 975–76. In fact,
the court relied on Appalachian Power for the proposition that a guidance document does constitute
final and reviewable agency action under Section 704 where it “inflicts injury or forces a party to
change its behavior.” Id. at 976 (citing Appalachian Power, 208 F.3d at 1022). The court simply held
that AT&T failed to plead such injuries4 — a holding that is both unremarkable and unhelpful for
EEOC given that it does not dispute that its Felon-Hiring Rule does force employers to change their
behaviors and does bind the Commission’s staff “for all practical purposes.” Appalachian Power, 208
F.3d at 1021.
Finally, there is a good reason that EEOC is unwilling to dispute in this Court that the
Felon-Hiring Rule is binding for all practical purposes. That’s because it routinely goes into other
courts and urges deference for its guidance documents, and it can succeed in that endeavor only if it
can show that its staff has taken a “consistent position” in its “enforcement actions” under the
guidance document at issue. Br. for the United States as Amicus Curiae at 28, Vance v. Ball State, 133
S. Ct. 2434 (2012), No. 11-556 (“EEOC’s Vance Br.,” attached as Ex. A); see Federal Express Corp. v.
4 EEOC is wrong to the extent it implies that AT&T can be read to hold that all “letters of
determination” are not final agency actions. See MTD at 9. The D.C. Circuit repeatedly has held the
opposite. See, e.g., CSI Aviation Servs. v. DOT, 637 F.3d 408 (D.C. Cir. 2011); City of Dania Beach v. FAA, 485 F.3d 1181

(D.C. Cir. 2007); Safe Extensions v. FAA, 509 F.3d 593 (D.C. Cir. 2007); Student Loan Marketing Ass’n v. Riley, 104 F.3d 397
(D.C. Cir. 1997); Ciba-Geigy, 801 F.2d at 435–37. And in all events, that implication is irrelevant here because the FelonHiring Rule bears no resemblance to the interim letter at issue in AT&T.

24

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Page 31 of 34 PageID 397

Holowecki, 552 U.S. 389, 399 (2008) (affording some deference to a guidance document that had
“been binding on EEOC staff for at least five years”). In fact, just last Term, EEOC twice urged the
Supreme Court to afford legal effect to positions that the Commission took in its “guidance”
documents, and both times, EEOC emphasized that its guidance documents “consistently” bind its
staff and their enforcement decisions. See EEOC’s Vance Br. at 26–29; Br. of the United States as
Amicus Curiae at 28–30, University of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2012), No. 12-484
(“EEOC’s Nassar Br.,” attached as Ex. B).
The fact that EEOC wants to retain the ability to tell other courts in other contexts that its
guidance deserves deference and legal effect makes it all the more untenable for the Commission to
tell this Court the opposite. The Commission is not the first agency to eats its cake while attempting
to keep it. But as Cohen, Syncor, American Bus, Appalachian Power, Barrick, NRDC, Manufactured Housing,
and Atchison all make clear, the courts reject that strategy every time an agency is bold enough to try
it. This Court should do the same.
CONCLUSION
Defendants’ motion to dismiss should be denied.

25

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Page 32 of 34 PageID 398

Respectfully submitted.
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JONATHAN F. MITCHELL
Solicitor General
/s/ Andrew S. Oldham
ANDREW S. OLDHAM
Deputy Solicitor General
ARTHUR C. D’ANDREA
RICHARD B. FARRER
DUSTIN M. HOWELL
Assistant Solicitors General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711-2548
[phone]
Dated: March 18, 2014

26

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Page 33 of 34 PageID 399

CERTIFICATE OF SERVICE
I hereby certify that, on March 18, 2014, a true and correct copy of the foregoing was served
by CM/ECF on:
Justin M. Sandberg, Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Mass. Ave. NW, Rm. 7302
Washington, D.C. 20001
[e-mail]

/s/ Andrew S. Oldham
Andrew S. Oldham

Case 5:13-cv-00255-C Document 25 Filed 03/18/14

Page 34 of 34 PageID 400

EXHIBITS
Tab
Br. for the United States as Amicus Curiae,
Vance v. Ball State, 133 S. Ct. 2434 (2012), No. 11-556 ......................................................................... A
Br. of the United States as Amicus Curiae,
University of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2012), No. 12-484 .................................. B

2

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

Page 1 of 39 PageID 401

EXHIBIT A

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

Page 2 of 39 PageID 402
ww¡/,.uPremecourtprevlewof!

No. 11-556

llntþ Supremt @ourt of tút @niteù þtutts
M¡¡rra

Ve¡lco, PETITIoNER
a.

BA-l,t,

St¡to

UNIvonsITY, ETAL.

ONWRIT OF CERTIORARI
TO THE UNITED STATES COUNT OF APPEALS
FONTHE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

DoNelp B. VnRnIllt, Jn.
Solicitor General
Counsel of Record,
THoMAS E. Pnnnz
P.

Drvro Lopnz

General Counsel
CRnolvN L. Wupnlnn
Actin g A s s o ci a,te G en erq,l
Counsel

Deurnl

T.

Vatl

Acting As sistant

G

enerøl

Counsel

Julrn L. Gexrz
Attorney

ssion
507

As sistant Attorney G enerøl
SnI SnrNweslu
D eputy S olicitor G eneral

ANt'¡

O'CoNunll

Assistont to the Solicitor
General
DsNurs J, Drusov
Apnrl J. A¡¡onnsoN
Attornegs
Denartment of Justice
W å,shinstoa b. C. go s e o -ooo I
uprem eC tB riefs
(202) 51t+-2217

S

@ us

doj. g oa

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

Page 3 of 39 PageID 403

QUESTION PRESENTED

Whether an employee must have the po\Mer to carry
out a tangible employment action, such as hiring, firing,
promoting, demoting, transferring, or disciplining an
employee, in order to qualify as a supervisor for purposes of vicarious employer liability under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.

(r)

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

Page 4 of 39 PageID 404

TABLE OF COI.{TENTS
Page

Interest of the United States

1

.8
Summary of argument..
An employee who directs another employee's daily work
activities but cannot take tangible emplo¡rment actions
is a supervisor for purposes of vicarious liabiliff under
Title VII:
A. Title VII imposes vicarious liability on employers
for harassment by an employee with authority to
direct the victim's daily work activities.................... 11
1. Imposing vicarious liability for harassment
by an employee with authority to direct the
victim's daily work activities is consistent
11
with agency principles
2. Imposing vicarious liability for harassment
by an employee with authority to direct the
victim's daily work activities is consistent
with the objectives of Title VII............ .,........,...22
B. The EEOC's longstanding interpretation is
reasonable and entitled to deference ................. .....,, 26
C. On the existing record in this case, Davis fails
30
to qualify as petitioner's supervisor
........33
Conclusion

TABLE OF AUTHORITIES
Cases:

Alb emarle

P ap

er

Allison Engine

C

Co.

o. v . M

oo

d,g, 422 U .S. 405

B urlington I nd,u s., I nc.

v.E

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

llerth,

524 U .5. 7 42

..........,,......passim

Burlington N. & Santa Fe Rg.
53

975)..,.... 23, 25

v, United, States en rel. Sønd,ers,

553 U.S.662 (2008)..

(19e8)

(1

(2006)

Co.

v.Whitø, 548 U.S.
......... 16,

(rrr)

2r,22

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

Page 5 of 39 PageID 405

ry

Cases-Continued:

Page

Dulanegv. Packaging Corp.of Am.,673 F.3d 323
(4th Cir. 20LZ)..........
......................28
EEOCv. CRST Van Eæped,itedn 1nc.,679 F.3d 657
(8th Cir. 2012)..........
20,2I,28
F aragher v. City of Bocø Røton, 524 U.S. 77 5

(1998)

..................p a'ssim

Fed,eral Eæpress Corp. v. Holowecki,552 U.S. 389

(2008)

......28
F.3d 345 (Zth Ctu.2002).....,6,29
Hatlv. Bod;i,ne Elec. Co.,276
Kasten v. S aint-Gobuin P erþrmsnce Plastics C orp.,
...........28
131S. Ct.L325 (2011).........
Mack,v. Otis Eleuator Co.,326 F.3d 116 (2d. Cir.),
18,28
cert. denied, 540 U.S. 1016 (2003)

Martinv. Occupationa'l Safety & Hea'lth Reuiew
Cornrn'n,499 U.S. 144 (1991)
Merclc KGaA,v. Integra Lifesciences I, Ltd.,545 U.S.
193

(2005)

Meritor

Saa. Ba,nk,.FSB v. Vi'nson,477

27

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

U.5.57
L,2,26

(1e86)

Milcetsv.Ci,ty of Durham, 183 F.3d 323(4lhOir. 1999).......32
Oncalev. Sund,oumer Offshore Servs., [nc.,523 U.S. 75
L,2,22
Pq,rki,ns v. Ciail Constructors of lllinois, Inc., 163 F.3d
29
1027 (7th Cir. 1998)
Pennsyluania State Policev. Sud,ers,64z U.S. 129

(1993)

(2004)

L5,23

Illinois Dep't of Transp.,35g F.3d 498
(Zth Cir.
........ 6, 7,19,29
2t
Slûd,morev. Swifi Co.,323 U.S. 134 (1944)...
SprintlUnited, Mgmt. Co.v. Mendelsohn, SS2 U.S. 379

Rhod,esv.

(2008)

2004)..........

32

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

Page 6 of 39 PageID 406

V
Cases-Continued:

Page

Støubv. Proctor Hosp., 131 S. Ct. 1186 (2011)
Sud,ersv. Easton,3z5 F.3d 4¡ì2 (3d Cir. 2003)
Telløbs, Inc. v. Malw Issues & Rights, Ltd.,55LU,S
308 (2007)

25
15
32

Wegers v. Lear Operøtions Corp.,359 F.3d 1049
(8th Cir.2004)
19,20,28
(4th Cir.2010)...... L7,28
Whittenv. Fred;s, Inc.,60I F.3d 231

Statutes:

Civil Rights Act of 1964, Tit. YII,42 U.S.C. 2000e
et

seq.

..................passim

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

42 U.S.C.2000e-5(Ð(1)
42 U.S.C. 2000e-16 (2006 & Supp.

..................8, 11

*..I,2,t6,21
1

IV 2010).......................1

Uniforme d Services E mplo¡rment and Reemplo¡rment
Rights Act of 1994,38 U.S.C. 4301et seq. ...............,,........25
Miscellaneous:

Guidance on Vicarious E mploy er Lia,bility for Unlawful Hurassment by Supemisors,8 FEP Manual (BNA) 405:7654 (1999),
available at 1999 \ryL æ305874............... .. L3,26

E E OC, E nforcement

Susan Estrich,
(1ee1)

Seæ

atWork,43 Stan. L. Rev. 813

t4

Prossar and, Keøton on the Law of Torts (W. Page
..,25,26
Keeton ed.,5th ed. 1984)....
1 Restatement (Second) of Agency $ 219(2Xd) (1957) .......... Lz
1 Restatement (Third) of Agency $ 1.02 (2006)...................,..21

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

lln tW åupremt @outt of

tÍ)e

Page 7 of 39 PageID 407

@nÍtù 9¡tutts

No. 11-556

Ma¡mn VaNCE, PETITIoNER
a,

BALL Srerp UNvgnslrY, ETA-L.

ONWRIT OF CENTIONARI
TO THE UNITED STATES COURT OF APPEALS
FORTHD SEVENTH CINCUIT

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

INTEREST OF THE UNITED STATES

Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq.,prohibits discrimination in employment on
various bases. 42 U.S.C. 2000e-2(a). Actionable discrim-

ination includes harassment that creates a hostile working environment. See, e.g., Meritor Sau. Banlc,.FSB v.
Vinson,47? U.S. 57,66 (1986); OncøIev. Sund,owner Offshore Serus., lnc.,523 U.S. 75, 78 (1998). The Attorney
General is responsible for enforcing Title VII against
public employers, and the Equal Employment Opportunity Commission (EEOC) enforces Title VII against
private employers. 42 U.S.C.2000e-5(f)(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. IV 2010). The United States thus has a strong
interest in the proper interpretation of Title VII. At the
(1)

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Page 8 of 39 PageID 408

2

Court's invitation, the United States filed a brief as amicus curiae at the petition stage of this case.
STATEMETTT

1. Title VII prohibits employment discrimination on
the basis of race, color, religion, sex, or national origin.
42 U.S.C. 2000e-2(a). Employers may be liable for harassment on those bases that creates a hostile working
environment. See, ø.g., Meritor Søu. Ba,nk, FSB v.
Vinson,417 U.S. 57,66 (1986); Oncalev. Sundowner Offshore Serus., lnc.,523 U.S.75,78 (1998).
The standard for determining an employer's liability
for harassment turns on the harasser's status in the
workplace. An employer is vicariously liable for a supervisor's h arassme nt. F ørag her v. City of B o ca R øton,
524 U.S. 776, 807 (1998); Burlington Ind,us., Inc. v.
Ellerth,524 U.S. 742,764-765 (1998). If the supervisor
took no tangible emplo¡rment action against the victim,
however, the employer may assert as an affirmative defense that it exercised reasonable care to prevent and
correct harassment and that the victim unreasonably
failed to take advantage of the corrective and preventive
opportunities. Farøgher,524 U.S. at 789, 807; Ellerth,
524 U.S. at760,764-766; see i"d,. at76l (defining "tangible employment action" to include "a significant change
of employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a significant change
'When
the harasser is a co-worker rather
in benefits").
than a supervisor, the employer is liable if the victim
proves that the employer was negligent because it
"kne\M or should have known about the conduct" but
failed to take appropriate action. Ellerth,524 U.S. at
759,765; see also Faragher, 524 U.S. at799.

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3

The Court has stated that the rule of vicarious liability for a supervisor's harassment applies to a "supervisor with immediate (or successively higher) authority."
Fa,røglter, 524 U.S. at 807; Ellerth 524 U.S. at 765. The
Court has not, however, specifically defined which employees qualify as supervisors for purposes of that rule.
2. Petitioner Maetta Vance, who is African-American,
began working for respondent Ball State University in
1989 as a substitute server in the Banquet and Catering
Division of University Dining Services. She became a
part-time catering assistant in 1991. Pet. App. 2a,27a.
Petitioner was involved in several confrontations at
work, including racially-charged incidents. I d. at La-Za.
Most relevant here are her altercations with Saundra
Davis, a catering specialist who is white. Id,. at 54a.
a. Sometime before 2002, petitioner and Davis argued, and Davis slapped petitioner on the head. Pet.
App. 3a, 18a,30a n,5. Petitioner told her employer about
the incident but did not pursue the matter. Id,. at 3a.
Davis rüas soon transferred to another department. Id.
atBa,30a n.5.
The conflicts resumed when Davis returned to the
Banquet and Catering Division in 2005. Pet. App. 3a.
On September 23,2005, Davis blocked petitioner from

exiting an elevator and said, "I'11 do

it again"-

apparently referring to the slapping incident. Id. atïa,
l&a,29a-30a. Petitioner filed an internal complaint describing the incident. Id,. at 3a-4a. Around the same
time, petitioner overheard Davis using the terms "Sambo" and "Buckwheat" while looking at her, but she apparently did not report those comments. Id. at6a,59a61a. Petitioner told her supervisors that she was "not
comfortable with Saundra Davis leaving her notes and
delegating jobs to her in the kitchen." 1:06-cv-01452

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Page 10 of 39 PageID 410

4

Docket entry No. (Docket entry No.) 59-16, at 2 (S.D.
Ind. Nov. 1,2007); J.4.66-67.
In May 2006, petitioner filed another internal complaint alleging that Davis blocked her way at the elevator, that she was left alone with Davis in the kitchen, and
that Davis gave her "weird" looks. Pet. App. 6a-7a,37a
n.8. In response to petitioner's complaints, managers
attempted to separate her from Davis. Id,. at 36a; J.A.
367.

b. During this period, petitioner

also had difficulties
with others in the department, some of which \Mere racially charged. In September 2005, someone told peti-

tioner that co-worker Connie McVicker had bragged
about her family ties to the Ku Klux Klan and had called
petitioner a "nigger." Pet. App. 3a, 3la-32a. Petitioner
reported the incident, and Bill Kimes, general manager
of the Banquet and Catering Division, gave McVicker a
written warning, which was atypical for a first offense.
Id. at 4a-5a,33a n.6, 34a-35a. A few days later, another
supervisor met with McVicker and suggested she consider a transfer. Id. at 35a. Petitioner also reported
that McVicker had called her a "monkey." Id. at 5a,35a.
In December 2005, petitioner filed a complaint with the
EEOC alleging, inter a,lia, race discrimination. Id. at
6a,36a.
In 2006, petitioner alleged that Karen Adkins, an assistant personnel director, was "mean mugging" and following petitioner at work. Pet. App. 7a,37a n.8. Petitioner also filed an internal retaliation complaint against
Kimes. Id. at 7a, 40a. Respondent investigated the
complaints but found no basis for disciplinary action.
Id. at37a n.8, 40a-41a. In August 2006,petitioner filed a
second complaint with the EEOC, claiming that respondent had retaliated against her by diminishing her

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5

duties, withholding her breaks, denying her overtime,
and disciplining her unei¡ually. Id,. at7a,40a.
c. Petitioner filed this suit in October 2006, alleging
that she was subjected to a hostile work environment
and was retaliated against for complaining about discrimination, in violation of Title VII. Pet. App. 7a,52a.
In January 2007, respondent promoted petitioner to a
full-time catering assistant. Pet. App. 27a,4Ia. Petitioner claimed that Davis and others continued to harass
her. According to petitioner's complaints, she was consigned to "entry level duties" such as cutting up celery
sticks. Id,. at 43a,7|a. Petitioner further alleged that in
August 2007, Davis encountered petitioner at an elevator and said, 'Are you scared?" in a southern accent. Id.
at 38a. Petitioner reported the incident, and Davis received a verbal warning. Ibid. Also that month, petitioner filed a grievance about an incident in which
McVicker said "payback" as petitioner passed her at the
elevator. Id. at 37a, 63a. Soon afterwards, McVicker
transferred to anotherjob. Id. at36a.
d. On petitioner's various complaint forms, she listed
Davis as a "supervisor." J.A. 28-29, 45; Docket entry
No. 60-12, at 1. But when asked in a deposition if Davis
was her supervisor, petitioner said, "[O]ne day she's a
supervisor; one day she's not. * * * It's inconsistent."
Pet. App. 54a. Petitioner believed Davis was "part of
management because she doesn't clock in." Ibid'. Another employee said he r'vas unsure of Davis's status, but
claimed that Kimes told him Davis r'vas a supervisor.
J.A. 385-387. Kimes said Davis's status was "complicated" and explained that Davis did "direct and lead" at
times. J.A. 366-367. Davis's job description states that
she supervises "lk]itchen Ia]ssistants and ls]ubstitutes,"
and exercises "leadership of up to 20 part-time, substi-

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6

tute, and student employees." J.A. 12. But Kimes also
testified that he "cfould]n't have [Davis] directing lpetitionerl" because of problems between them and that he
tried to separate them after petitioner complained. J.A.
367. Generally, Kimes or the kitchen chef assigned petitioner's day-to-day tasks. Pet. App. 27a,4la-42a.
3. The district court granted summary judgment in
favor of respondent. Pet. App. 25a-80a.
a. The court concluded that Davis was not petitioner's supervisor and that respondent therefore was not
vicariously liable for Davis's conduct. Pet. App. 53a-55a.
The court applied Seventh Circuit precedent holding
that "[a] supervisor is someonewith the power to directly affect the terms and conditions of the plaintiff 's emplo¡rment," id,. at 53a (citing Rhod,esv. I\Linoi's Dep't of
Transp.,35g EBd 498,506 (?th Cir. 2004)),which authority "primarily consists of the po\Mer to hire, fire, demote,
promote, transfer, or discipline an employee," ibi'd.
(quoting HaIIv. Bod,i,ne Elec. Co.,276 EBd 345, 355 (7th
Cir. 2002)). Accordingly, the court ruled, even assuming
"Davis periodically had authority to direct the work of
other employees, such power \Mould still not be sufficient
to establish a supervisory relationship for purposes of
Title VII." Id,. at 54a. The court noted that it was "well
established under Seventh Circuit law that '[a]n employee merely having authority to oversee aspects of another employee's job performance does not qualify as a
supervisor."' Ibid,. (quoting Rhod,øs, 359 EBd at 506).
The court found "nothing in the record indicating that
Ms. Davis had the ability to hire, fire, demote, promote,
transfer, or discipline fpetitioner]." Ibid,. (internal quotation marks omitted).
b. The court evaluated petitioner's mistreatment by
Davis and McVicker under the standard for harassment

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7

by co-workers. Pet. App. 59a-68a. The court determined that most of petitioner's confrontations with Davis had "no racial character or purpose," and that any
racial remarks were "not sufficiently severe or pervasive" to support a hostile work environment claim. Id.
at59a-60a. The court concluded that McVicker's racial
statements did not "rise to the level of actionable harassment." Id. at 61a-63a.
The court further concluded that, even if petitioner
had suffered severe or pervasive racial harassment by
Davis and McVicker, she could not demonstrate a basis
for employer liability. Petitioner could not establish that
respondent was negligent because respondent had addressed petitioner's complaints in a way "reasonably
calculated to foreclose subsequent harassment." Pet.
App.60a-61a, 63a-66a.
c. The court also rejected petitioner's claims against
other employees and her claim of unlawful retaliation.
Pet. App, 55a-59a, 68a-80a.
4. The court of appeals affirmed. Pet. App. La-24a.
The court agreed with the district court that Davis was
not petitioner's supervisor because Davis lacked the
"power to directly affect the terms and conditions of [petitioner'sl employment" by hiring, firing, demoting,
promoting, transferring, or disciplining her. Id. at lZa
(quoting Rhod"es,359 n3d at 506) (emphasis omitted).
The court observed that it "ha[d] not joined other circuits in holding that the authority to direct an employee's daily activities establishes supervisory status under
Title VII." Id,. atLZa-LBa. The court thus held that petitioner's assertion "lhat Davis had the authority to tell
her what to do" failed to raise a triable issue concerning
supervisory status. Id,. atLBa.

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8

Applying the standard for co-worker harassment, the
court assumed that McVicker and Davis had created a
hostile work environment. Pet. App. 15a. The court
concluded, however, that respondent was not negligent
because it "promptly investigatled] each of fpetitioner's]
complaints and tlook] disciplinary action when appropriate." Ibid.; see id,. at 15a-19a. The court also upheld
the district court's rejection of petitioner's remaining
claims. Id,. at LBa-L a, L9a-24a.
SUMMARY OF ARGUMENT

A. 1. Title VII imposes liability on employers for the
acts of their "agent[s]." 42 U.S.C. 2000e(b). In Farø'
gher v. Ci.ty of Boca Raton,524 U.S. 775 (1998) , and BurIington Industries, Inc. v. Ellerth,524 U.S. 742 (1998),
the Court explained that, under agency principles, an
ernployer can be vicariously liable for harassment by an
employee who is a supervisor. That is because a victim
of harassment may be reluctant to accept the risks of
confronting a harasser who has supervisory authority,
and the agency relationship between the employer and
the supervisor thus aids the harasser in accomplishing
the harassment.
The court of appeals held that a "supervisor" for
purposes of. Førøgher and Ellerth is confined to persons
who have por,¡¡er to take tangible employment actions
against the victim, and does not encompass persons who
control the victim's day-to-day work activities. That understanding is unduly restrictive. This Court held in
Førøglter that "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile
work environment created by a supervisorwith immediate (or successively higher) authority over the employee." 524 U.S. at 807. An employee who controls work
assignments certainly may possess "immediate" and

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I
substantial authority over the victim, notwithstanding a
lack of po\Mer to take tangible employment actions. Indeed, in Fa,røglteritself., the Court concluded that a lifeguard captain who made daily work assignments was a
supervisor for purposes of Title VII even though he
lacked authority to take tangible employment actions.
Under agency principles as applied inFaragher and
Ellerth, vicarious liability under Title VII extends to
harassment by employees with authority to direct the
daily work activities of their victims. An employee's reluctance to accept the risks of confronting a superior is
not limited to situations in which the harasser has pov¡er
to take tangible employment actions. It may be equally
difficult for the victim to confront a harassing supervisor with authority to direct daily work activities, including the authority to assign particularly undesirable
tasks. That was the case in Faraghe1 for instance,
where the lifeguard captain threatened the victim that if
she did not date him, he would have her "clean the toilets for a year." 529 U.S. at 780. When an employer
vests an employee with authority to direct daily work
assignments, the harassment is facilitated by the agency
relationship and vicarious liability is warranted.
2. Title VII's purpose to avoid harm and to encourage the creation of anti-harassment policies and effective grievance mechanisms further supports the conclusion that Title VII imposes vicarious liability on an employer for harassment by an employee with authority to
control the victim's daily work activities. The affirmative defense provided in Fa,røgLter and Ellerth-which
allows an employer to avoid liability for supervisor harassment by showing that it exercised reasonable care to
prevent and correct harassment and that the plaintiff
unreasonably failed to take advantage of those preven-

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10

tative and corrective opportunities-encourages employers to screen supervisors, monitor them, and establish effective training and complaint programs. If employers faced vicarious liability only for the actions of
those supervisors with po\Mer to take tangible employment actions, employers would have diminished incentives to train and monitor intermediate supervisors.
And employees subject to harassment by those with control over day-to-day assignments would have a diminished ability to make use of employer grievance procedures,
Title VII also ensures that victims are compensated
for injuries suffered on account of unlawful employment
discrimination. Because the employer seeks to profit
through its agents, it is appropriate for the employer to
bear the costs when those agents abuse their delegated
authority to injure others.
B. The court of appeals' approach is also inconsistent
with EEOC guidance defining who is a supervisor for
purposes of vicarious liability under Title VII. The
EEOC's guidance provides that an employee is a supervisor if the employee (a) has authority to undertake or
recommend tangible employment actions, or (b) has authority to direct the victim's daily activities. The EEOC
thoroughly considered the Court's decisions inFørøgher
and Ellertb in formulating its position, the guidance has
governed the agency's enforcement actions since 1999,
and it is entitled to deference.
C. Under a correct approach that recognizes that an
individual with authority to direct daily work activities
qualifies as a supervisor, here, Davis would fail to qualify as petitioner's supervisor on the record as it currently stands. There is scant evidence in the record that
Davis exercised the requisite authority over petitioner's

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11

daily work activities; and authority to direct a limited
number of tasks does not suffice. Although there is evidence that Davis had a supervisory title, a supervisory
title does not itself connote the necessary authority to
direct day-to-day work assignments.
ARGUMEI.[T
AN EMPLOYEE WHO DIRECTS ANOTHER EMPLOYEE'S
DAILY WORK ACTIVITIES BUT CANNOT TAKE TANGIBLE
EMPLOYMENT ACTIONS IS A SUPERVISOR FOR PUR.
POSES OF VICARIOUS LIABILITY UNDER TITLE VII

A.

Title VII Imposes Vicarious Liability On Employers For
Harassment By An Employee With Authority To Direct
The Victim's Daily Work Activities
1. Imposing uúcaríous liøbíIítu for ha.rassment by øn
ernplogee wíth quthoríty to dírect the victím's døily
worlc actíaítíes is consistent wíth agency príncíples

a. The term "supervisor" does not appear in Title
VII, but the statutory text imposes liability on employers for the actions of their "agent[s]." 42 U.S.C.
2000e(b) (defining "employer" to include an agent of the
employer); see also Farøgherv. Citg of Boca Raton,524
U.S. 775, 791 (1998). Thus, "[i]n express terms, Congress has directed federal courts to interpret Title VII
based on agency principles." Burlington Ind,us., Inc, v.
Ellerth,524 U.S. 742,754 (1998).
Accordingly, in Fa,ra,glter and Ellerth, two cases involving allegations of workplace sexual harassment, this
Court applied agency principles to determine the scope
of an employer's vicarious liability under Title VII. The

Court first explained that an employer is liable for
"torts committed by an employee within the scope of his
or her employmenl," Ellertll,524 U.S. at 756, but that
"sexual harassment by a supervisor" generally falls out-

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t2
side the scope of employment because it is not done with
a purpose to serve the employer, id. at 756-757. The
Court concluded, however, that an employer could still

be vicariously liable for a supervisor's harassmentnotwithstanding that the supervisor is acting outside the
scope of his employment-based on a separate agency
principle supporting vicarious liability when an employee is "aided in accomplishing the tort by the existence of
the agency relation." Føra,gher, 524 U.S. at 801-802
(quoting I Restatement (Second) of Agency $ 219(2Xd),
at 48t 1t957)); see also Ellerth,524 U.S. at759-762.
The Court explained that a supervisor's harassment
of a subordinate is aided by the existence of the agency
relation because "[t]he agency relationship affords contactwith an employee subjected to a supervisor's * *
harassment, and the victim may * * * be reluctant to
accept the risks of blowing the whistle on a superior."
Føraglter, 524 U.S. at 803. Contrasting supervisor harassment from harassment by a co-worker, the Court observed: "'When a fellow employee harasses, the victim
can walk away or tell the offender where to go, but it
may be difficult to offer such responses to a supervisor."
Ibid,. The Court thus held that, under agency principles,
"[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment
created by a supervisor with immediate (or successively
higher) authority over the employee." Id. at 807. When
the harassment is committed by a co-worker rather than
a supervisor, however, the employer generally may be
liable only if negligent. See EIIerth,524U.S. at 759,765.
b. The court of appeals held that a "supervisor" for
purposes of the various liability rules set forth in
Farøgher and Ellerth is confined to persons possessing
"power to directlg affect the terms and conditions of
1r

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13

lthe victim's] employment," which the court understood
"primarily consistfing] of the power to fire, hire, demote, promote, transfer, or discipline an employee."
Pet. App. t\a (citations omitted). Under that approach,
the court explained, the "the authority to direct an employee's daily activities" is insufficient to establish supervisory status. Id. at 13a. That understanding is unduly restrictive.
Nothing in Farøgher or ELLerúh suggests that supervisory status is limited to those employees who have authority to "fire, hire, demote, promote, transfer, or discipline an employee," to the exclusion of those with "authority to direct an employee's daily activities." Pet.
App. 12a-13a (citation omitted). The decisions state that
an employer is subject to vicarious liability for a hostile
environment created by "a supervisor with immediate
(or successively higher) authority over the employee."
Førøgher, 524 U.S. at807; see also EIIerth 524U.5. at
765. And a person who controls dailywork assignments
and schedules certainly may possess "immediate"-and
substantial-"authority over the employې," notwithstanding a lack of power to take tangible employment
actions.l The Court in Farøgher recognized as much,
as

I This Court has defined "tangible emplo¡.'rnent action" to include
"a significant change of employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."
E\lerth,524 U.S. at76J' "A tangible employment decision requires
an official act of the enterprise, a company act. The decision in most
cases is documented in official company records, and may be subject
to review by higher level supewisors." Id,. at762. While those sorts
of actions affecting an employee's general employment status amount
to tangible employment actions, an alteration in an employee's dayto-daywork activities or schedule is generally not considered a tangible emplo¡rment action for these purposes. See EEOC, Enforcement

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t4
noting that harassment by a supervisor "is aided by the
agency relation" because a supervisor's "po',ver to supervise-lwhich may be] to hire and fire, andto set worlr
schedules and pay rates-does not disappear when lthe
supervisorl chooses to harass through insults and offensive gestures rather than directly with threats of firing
or promises of promotion." 524 U.S. at 802-803 (quoting
Susan Estrich, Sen at Work,43 Stan. L. Rev. 813, 854
(1991)) (emphasis added). The Courtthus acknowledged
that the setting of day-to-day work schedules, although
not a tangible emplo¡rment action, may readily be among
the powers a supervisor uses to intimidate a subordinate.
The court of appeals' restrictive approach cannot be
squared with this Court's resolution of the specific
claims inFarøgher. There,the Court concluded thatthe
employer was vicariously liable for harassment by two
employees even though one had no authority to effect
tangible employment actions. Lifeguard captain David
Silverman was "responsible for making the femployees']
daily assignments, and for supervising their work and
fitness training." 524 U.S. at781,810. In contrast, Bill
Terry, Chief of the Marine Safety Division, had "authority to hire new femployees] (subiect to the approval of
higher management), to supervise all aspects of ltheir]
work assignments, to engage in counseling, to deliver
oral reprimands, and to make arecord of any such discipline." Id. at 781. The Court upheld vicarious liability
for both Silverman's and Terry's actions, explaining that
"these supervisors were granted virtually unchecked authority over their subordinates, directly controllling]
Guid,ance onVicarious Employer Liability

for Unløwful Harass(BNA) 405:7654 (1999), availmentby Superuisors, S FEP Manual
able at 1999 WL 33305874.

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15

and supervisling] all aspects of [Faragher's] day-to-day
activities." Id. at 808 (internal quotation marks and ci-

tation omitted) (brackets in original).
The Court's focus on the porü¡er to supervise and control Faragher's "day-to-day activities" necessarily encompasses power over daily assignments, and necessarily applied to Silverman, who was responsible for making
the lifeguards' daily assignments. He thus could substantially determine the desirability (or undesirability)
of Faragher's daily work experience. Under the court of
appeals' restrictive approach, however, Silverman would
have merely been considered Faragher's co-worker because he lacked authority to take tangible employment
actions against her, even though he controlled her daily
assignments.2
c. Under this Court's application of agency principles
ín Farøgher and Ellerth, vicarious liability under Title
VII extends to harassment by employees with authority
to control the daily work activities of their victims. An
employee's "reluetan[ce] to accept the risks of blowing
the whistle on a superior," Faraghen 524 U.S. at 803, is

not confined to situations where the harasser has the
po\Mer to take tangible employment actions. See Ellertlt',
524 U.S. at76t. Because an employee with supervisory
por,¡¡ers vested by the employer may "implicitly threaten
to misuse lthosel supervisory porü¡ers to deter any re2

While the question of who is a supervisor was not directly at issue, this Court in Pennsglaania State Policev. Sud,ers,542 U.S. 129
(2004), evaluated the respondent's constructive discharge claim under
the Faraglt er and Ellerth framework for harassment by supervisors,
even though the harassers had no authority to take tangible employment actions. See Sud,ersv. Easton,3z5 F.3d 432,460 n.11 (3d Cir.
2003) (noting that supewisors could not take tangible employment
actions but were "responsible for day-to-day supervision").

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16

sistance or complaint," Føragher,524 U.S. at 801, it may
be equally difficult for a victim to "walk away or tell the
offender where to go" when the harasser, although lacking authority to take tangible employment actions, directs the victim's daily work activities, id. at 803. Harassment in that context is aided by the agency relationship for purposes of the vicarious liability rules set forth
in Faragher and Ellerth.
This Court's decision in Burlington N orthern & S anta Fe Røilusag Co. v. White,548 U.S. 53 (2006), is instructive in this regard. There, the Court held that Title
VII's anti-retaliation provision, 42 U.S.C. 2000e-2(a), encompassed the retaliatory reallocation of job duties
within the same position. The Court explained that
"[a]lmost every job category involves some responsibilities and duties that are less desirable than others," and
"fc]ommon sense suggests that one good way to discourfrom bringing discrimination
àge an employee
charges would be to insist that she spend more time performing the arduous duties and less time performing
those that are easier or more agreeable." 548 U.S. at
70-71. It is equally a matter of common sense that the
authority to control an employee's day-to-day work assignments and schedule materially contributes to a person's ability to harass another and materially diminishes
the victim's practical ability to resist and respond.
d. A number of reported decisions illustrate how employees with authority to direct the dailywork activities
of others have used that power to threaten subordinates
into tolerating workplace harassment. In Føro'gher, fot
instance, lifeguard captain Silverman, who had authority
to "make [the victim's] daily assignments," 524 U.S. at
?81, subjected the victim to various forms of sexual harassment. In addition to tackling the victim, "pantomim-

t **

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t7
[ing] an act of oral sex," making "frequent, vulgar references to women and sexual matters," and "commentling]
on the bodies of female lifeguards," Silverman explicitly
wielded his authority to direct the victim's work assignments by telting her, "[d]ate me or clean the toilets for a
year." Id. at780,782. This Court concluded thatvicarious liability'ùras appropriate, noting that Silverman "directly controllled] and supervisled] all aspects of [the
victim'sl day-to-day activities," and that the victim was
"completely isolated from the City's higher management." Id. at 808 (internal quotation marks and citations omitted).
Similarly, inWhittenv. Fred's, Inc.,60L EBd 231 (4th
Cir. 2010), the plaintiff was sexually harassed by a "store
manager," the senior employee on site. Id. at236.3 The
store manager controlled scheduling, and he told the
victim that if she wanted long weekends off from work,
she needed to "be good to [him] and give [him] what [he]
want[ed]." Ibid. (internal quotation marks and citation
omitted) (brackets in original). After she attempted to
ignore the store manager's harassment throughout the
work day, he ordered her to stay late and clean the
store, and he later revoked her day off. Ibid. The court
concluded that supervisor liability was appropriate under Farøgher and Ellertlt, because, "lu]nlike a mere coworker, lthe store manager] could change Whitten's
schedule and impose unpleasant duties on a whim,"
which made the victim "vulnerable to his conduct in
rways that comparable conduct by a mere co-worker
would not." Id,. at246.
B

Whitten involved only state law claims, but the court applied
the Faragher and Ellerllt framework, noting that South Carolina law
"essentially follows the substantive strictures of TitleVII." 601 F.3d
at242.

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18

In Mack v. Oti,s Eleuator Co.,326 EBd 116 (2d Cir.),
cert. denied, 540 U.S. 1016 (2003), the plaintift an elevator mechanic's helper, alleged that she rtras sexually harassed by the "mechanic in charge" of her worksite,
James Connolly, who had authority "to assign and
schedule work" and to "direct the work force." Id. at
L20. Connolly referred to the victim on multiple occasions as an "attractive young lady," and told her repeatedly that she had a "fantastic ass," "luscious lips," and
"beautiful eyes." Ibid. Connolly regularly changed his
clothes in front of the plaintiff at the end of his shift,
boasted to her about sexual exploits, and on one occasion
"grabbed [her] by the waist, pulled her onto his lap,

tried to kiss her[,] and touched her buttocks." Ibid,

When matters grerrv increasingly tense between the two,
Connolly gave the plaintiff very little overtime work and
told her that he did not care if she complained about him
because "I get awaywith everything, I always have and
I always will." Id,, at t2l. The court concluded that
Connolly's authority to direct the plaintiff 's workday, in
addition to the fact that he was the senior employee on
site, clothed him with "special dominance over other onsite employees," and the harassment was therefore aided by Connolly's agency relationship with the employer.

Id. att25.
In each of these

cases, the employer vested certain
employees with authority to direct the daily activities of
others, and that por'ver was abused to harass individual
subordinates. That harassment was facilitated by the
authority vested by the employer, and vicarious liability
was therefore warranted under agency principles as applied by this Court in Føragher and EIIerth.
By contrast, decisions from circuits that have limited
supervisor liability to employees with authority to take

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19

tangible employment actions illustrate how that restrictive rule unfairly shields employers from liability when
their agents harass victims by abusing delegated authority. In Rltod,es v. Illinois Department of Transportatton,359 EBd 498 (Tth Cir. 2004), for example, the
plaintiff was the only female employee during her first
two seasons as a highway maintainer. Id. at502. After
she complained about a route change, she alleged that
the two employees with responsibility for assigning
tasks in the work yard called her vulgar names, forced
her to wash her truck in sub-zero temperatures, assigned her to work in the yard instead of on road crews,
instructed a mechanic not to fix the heat in her truck,
and improperly marked her as absent from work when
she went to take a licensing test. Id. at 501-503. The
employer conceded that the plaintiff had been subjected
to a hostile work environment, id'. at 505, but the court
concluded that vicarious liability was un\Marranted because the harassers had no authority to make economic
decisions regarding the victim's emplo¡rm ent. Id,. at 506.
In a concurring opinion, Judge Rovner expressed concern that the court's unduly narrorü¡ definition of supervisor tiability tvas "troubling * {< t in a case like this"
and should be reexamined. Id. at 509. She explained
that, regardless of whether the harassers possessed
formal employm ent authori ty, " a factfind er reasonably
might conclude that the po\r/er fthe employer] had given
them to manage the Yard on a day-to-day basis enabled
or facilitated their ability to create a hostile work environment." Id. at5L0.
InWeyers v. Leør Operøti,ons Corp.,359 EBd 1049
(8th Cir. 2004), the plaintiff, who was 43 years old when
she was hired, alleged that she was subjected to a hostile work environment by her "team leader," who had au-

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20

thority to assign her daily tasks. Id,. at 1051-1052. She
alleged that the team leader subjected her to constant
harassment about her age, including telling her "if
you're ovet 25, you're female, you're out of here. You
don't work for me. You don't work in my department."
Id. at L052 &, n.3, 1057. She also alleged that the team
leader used his authority to prohibit her from participating in training opportunities available to other ner'v employees, which she believed contributed to her dismissal.
Id. at 1057. The court ofappeals reversed ajuryverdict
in the plaintiff 's favor, concluding that the employerwas
not vicariously liable for the harassment because the
team leader "himself did not have the porwer to take

tangible employment actions against [the plaintiff]."
Ibid. The court noted that its "option of adopting the
broader * t * definition of supervisor status [had
beenl foreclosed" by circuit precedent. Id. at 1056-1057.
In EEOC v. CrRS? Vøn Erped'ited,, [nc.,679 EBd 657
(8th Cir. z}Iz),various female truck drivers attempting
to complete their employer's training program, which
involved a 28-day over-the-road training trip with a
"Lead Driver" who evaluated the trainee's performance
at the end of the trip, alleged that they were subjected
to sexual harassment during those trips. Id,, at665. One
victim alleged that a Lead Driver made constant sexual
remarks while giving her instructions, such as telling
her "the gear stick is not the penis of [your] husband,
[you] don't have to touch the gear stick so often" and
"[y]ou got big tits for your size," and that another Lead
Driver "forced [her] to have unwanted sex with him on
several occasions in order to get a passing grade." Id,. at
666. Another victim alleged that her Lead Driver repeatedly entered the cab wearing only his underpants
and rubbed the back of her head; ordered her to clean

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21

up the truck when she complained about the mess, saying "that's what you're on the truck for, you're my bitch
t 'ß * ls]hut up and clean it up"; and that he routinely
urinated in bottles and bags in the cabin and ordered
her to "shut up and clean it up" when she complained.
Id. at688. Despite the Lead Drivers'repeated abuse of
authority to harass trainees, the court concluded that,
"[a]pplying lcircuit] precedent," the employer could not
be vicariously liable because it was "undisputed that
none of CRST's Lead Drivers wielded any * * * power" to take tangible emplo¡rment actions against the victims, Id,, at684.
e. Determining whether an employee who harassed
a subordinate has authority to direct the victim's daily
work activities will require evaluation of facts specific to
the emplo¡rment relationship between the harasser and
the victim. In Title VII, Congress "directed federal
courts to interpret Title VII based on agency principles," Ellerth,6z4 U.S. at754, and agency principles require evaluation of specific facts. See 1 Restatement
(Third) of Agency $ 1.02 (2006) ("'Whether a relationship
is one of agency is a legal conclusion made after an assessment of the facts of the relationship.").
This Court has recognized the need for a similarly
fact-specific approach in other Title VII contexts. "Context matters." Burlington Northern, 548 U.S. at 69.
For instance, the test for determining whether an employer took a prohibited retaliatory action against an
employee under Title VII's antiretaliation provision, 42
U.S.C. 2000e-2(a), depends on whether the challenged
action "might have dissuaded a reasonable worker from
making or supporting a charge of discrimination." BurLi.ngton Nortltern, 548 U.S. at 68 (internal quotation
marks and citation omitted). In adopting that standard,

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22

the Court acknowledged that "the significance of any
given act of retaliation will often depend upon the particular circumstances." Id. at69. To determinewhether
unlawful harassment has occurred, moreover, the plaintiff must show that harassment was sufficiently severe
or pervasive to alter the terms and conditions of his or
her employment, and the severity of harassment "should
be judged from the perspective of a reasonable person in
the plaintiff 's position, considering all the circumstances." Onca,Iev. Sundowner Offshore Serus., Inc.,523U.S.
75, 81 (1998) (internal quotation marks and citation
omitted).
In any event, the court of appeals' more restrictive
approach does not necessarily offer a bright-line alter'Whether
native.
an employee has authority to take tangible emplo¡rment actions against a victim may not be
clear in an employer's policy documents, and there may
be no examples of the alleged harasser taking such actions. As a factual matter, the inquiry into whether an
employee possesses authority to direct a subordinate's
daily activities may be no more contextual than the inquiry into whether he has authority to take tangible employment actions. In either case, the analysis will turn
on consideration of the particularities of the authority
possessed by the putative supervisor.

2.

Imposing uícarious liabilíty for hørøssment by a.n
employee with øuthoríty to dírect the aictim's døily
worlc øctívitíes ís consistent with the obiectíves of
TítIe VII

Imposing vicarious liability on an employer for harassment by an employee with authority to control the
victim's daily work activities not only is consistent with
this Court's application of agency principles inFaragher

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23
and

Ellertlt,but also is consistent with the objectives of

Title

VII.

a. The primary object of Title VII is not "to provide
redress but to avoid harm." Førøghen 524 U.S. at 806
(citing Albemørle Paper Co. v. Moody, 422U.5. 405, 4L7
(19?5)); see also Ellerth,524 U.S. at764 (noting "Title
VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms").
The Courtin Føragher and Ellerth took special care to
"adapt agency concepts to the practical objectives ofTitle VII" by recognizing an affirmative defense through
which employers may avoid liability for harm inflicted
by supervisors by implementing policies designed to
prevent and correct harassment. Faraglter,524 U.S. at
802 n.3. The affirmative defense is unavailable in cases
in which a tangible employment action is taken. In
those circumstances, the "official power of the enterprise" has been brought to bear on the victim, and the
"aided by the agency relation" standard is satisfied.
E\lerth,5z4 U.S. at762-763. But in cases where no tangible emplo¡rment action is taken, an employer can avoid
liability for supervisor harassment by showing that it
exercised reasonable care to prevent and correct harassment and that the plaintiff employee unreasonably
faited to take advantage of those preventive and corrective opportunities. Faragher 524 U.S. at 807; Ellerth,
524 U.S. at764-765.
The affirmative defense establishe d in F ar a'g her and
ELLerth "accommodates lthe avoidable consequences]
doctrine by requiring plaintiffs reasonably to stave off
avoidable harm. " Pennsglu aniq, Sta,te Po\i'ce v. Sud'er s,
542 U.S. L29, L46 (2004) (internal quotation marks and
citation omitted). Properly applied, the defense encourages employers to screen supervisors, monitor them,

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

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24

and establish effective training and complaint programs.
Farøghey 524 U.S. at 803; Ellerth,524 U.S. at764-765.
The defense thus promotes Title VII's "designf] to en-

courage the creation of antiharassment policies and effective grievance mechanisms." Id'. at764.
If employers face vicarious liability only for the actions of those supervisors with por'ver to take tangible
employment actions, employers could attempt to insulate themselves from vicarious liability by confining the
authority to effect tangible employment actions to a centralized personnel department. Such a department
might be off site, and might have indirect or infrequent
contact with potential victims, leaving workers vulnerable to harassment by those with the greatest day-to-day
ability to create intolerable working conditions. Cf.
Faragher 524 U.S. at 808 (noting that supervisors supervised and controlled "all aspects of fFaragher's] dayto-day activities" and "had virtually unchecked authority," and that "Faragher and her colleagues rtvere completely isolated from the City's higher management")
(internal quotation marks omitted).
In that event, employers would have a diminished incentive to train or monitor immediate supervisors. And
victims would have a diminished ability and incentive to
make use of any available grievance procedures. That
arrangement would disserve the core purposes of Title
VII. But if supervisory liability were properly considered to encompass the authority to control day-to-day
work assignments, employers would lack any comparable ability or incentive to avoid vicarious liability by assigning that authority to a remote, central department:
by nature, the assignment of day-to-day activities and
schedules generally requires the exercise of on-site discretion and supervision. Employees' moreover, would

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25

be better positioned to take advantage of internal complaint procedures.
This Court recently addressed a similar dynamic in
Staub v. Proctor Hospital,131 S.Ct. 1186 (2011), a case
arising under the Uniformed Services Emplo¡rment and
Reemployment Rights Act of L994,38 U.S.C. 430I et
søq., which the Court has recognized "is very similar to
Title VII." Staub,131 S. Ct. at 1191. In Støub, the employer fired the plaintiff based in part on reports from
biased supervisors, including the plaintiff 's immediate
supervisor and a more senior supervisor. Id,. at 1189.
The Court concluded that the employer could be vicariously liable for the discharge even though an unbiased
vice president of human resources took the challenged
employment action. Otherwise, the Court explained, an
employer could "be effectively shielded from discriminatory acts and recommendations of supervisors" by vesting ultimate authority for personnel decisions in an independent official. Id. at 1193. The same considerations
counsel in favor of recognizing that an employee with
authority to direct day-to-daywork activities qualifies as
a supervisor for purposes of vicarious employer liability'

b. In addition to promoting deterrence, Title VII
provides a means "to make persons whole for injuries

suffered on account of unlawful emplo¡rment discrimination." A\bemørle Paper Co.,422 U.S. at 418. Commonlaw principles hold an employer vicariously liable for the
wrongful acts of its agents to promote compensation of
victims of wrongful conduct. Prosser and Keøton onthe
Lotut of Torús 500-501 (W. Page Keeton ed.,5th ed. 1984).
The common-law approach rests on the view that, because the employer has sought to profit through its
agents, the employer, rather than the innocent victims,
should bear the costs when those agents abuse their del-

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26

egated authority to injure others. Ibid. Because employers benefit from empowering lower-level supervisors to direct other workers, it is appropriate that they
should, subject to the Farøgher and Ellertla defense, be
subject to liability for abuse of that potrer.

B,

The EEOC's Longstanding Interpretation Is Reasonable And Entitled To I)eference

Shortly after the Court decided Faragher

and
guidance definELLerth, the EEOC issued enforcement
ing who qualifies as a supervisor for purposes of vicari-

ous employer liability under Title VII. EEOC, Enforcement Guidunce on Vicarious Employer Liability
for Unløwful Harøssmentbg Superaisors, 8 FEP Manual (BNA) 405:7654 (1999), available at 1999 WL
33305874 (reproduced at Pet. App. 81a-93a) (EEOC
Guidance). The guidance provides that an individual
qualifies as a supervisor if:
a. the individual has authority to undertake or recommend tangible emplo¡rment decisions affecting the
employee; or
b. the individual has authority to direct the employee's daily work activities,
Pet. App. 90a (emphasis added). That guidance is "an
administrative interpretation of lTitle VII] by the enforcing agency," and "constitutels] a body of experience
and informed judgment to which courts and litigants
may properly resort for guidance." Meritor Saa. Banlc,
fsbï. Vinson,477 U.S. 57,65(1986) (internal quotation
marks and citations omitied). The court of appeals initially adopted its narrow construction of supervisor liability without the benefit of the EEOC's guidance. The
Court should afford deference to that considered guidance in resolving the question presented.

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27

1. Agency enforcement guidelines are "entitled to re-

spect" when the agency has shown "thoroughness * * *
in its consideration" and "validity [in] its reasoning."
Skid,morev. SwiftCo.,323 U.S. 134, 140 (L944);see Ma,rtin v. Occupationa,I Safety & Health Reuiew Cont'rn'n,
499 U.S. 144, 156-L57 (1991). The EEOC's guidance
document demonstrates that the EEOC thoroughly considered the issue of supervisory status to formulate a
position on the scope of vicarious liability under Title
VII. The guidance document is entitled to deference.
To define the scope of supervisor liability under Title
VII, the EEOC explained that because vicarious liability
for supervisor harassment under Farøgher and Ellerth
is grounded in the harasser's potential misuse of dele-

gated authority, "that authority must be of sufficient
magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment" for vicarious liability to exist. Pet. App. 89a. The EEOC concluded
that, when an employee has authority to direct another
employee's day-to-day work activities, that person's
ability to harass "is enhanced by his or her authority to
increase the employee's workload or assign undesirable
tasks," and vicarious liability is therefore appropriate.
Id. at 91a. The EEOC explained that its interpretation
\Mas supported by the Court's resolution of the specific
claims in Farøgher, in which the Court concluded that
Silverman rffas a supervisor notwithstanding his lack of
authority to take tangible employment actions. Id. at
9ta-92a.
The EEOC's guidance also recognizes limits on who
should qualify as a supervisor by virtue of authority to
direct another employee's daily activities. Those limits
are directly tied to whether harâssmentwould be "aided
by the agency relation" in specific circumstances. The

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28

guidance explains that a determination of supervisor
status "is based on lthe employee's] iob function rather
than job title (e.g., 'team leader') and must be based on
the specific facts." Pet. App. 89a-90a. Moreover, if an
employee is only temporarily authorized to direct the
daily work activities of another, the employer is vicariously liable only for unlawful harassment that occurs
during that temporary period. Id. at92a. The guidance
further clarifies that an employee who "merely relays
other officials' instructions regarding work assignments
and reports back to those officials does not have true
supervisory authority," and harassment in that scenario
would not be aided by the agency relationship. Ibid.
And an employee who directs "only a limited number of
tasks or assignments" for another employee likewise
would not have sufficient authority to qualify as a su-

pervisor. .Ibid.
The EEOC's guidance has governed the agency's enforcement actions since 1999, and the EEOC has filed
numerous briefs in the courts of appeals setting forth its
understanding. See EEOC Br. as Amicus Curiae,
Dulaney v. Paclcøging Corp. of Am., 673 EBd 323 (4th
Cir.2012) (No. 10-2316); EEOC Br,CRST, s'üpra (Nos.
09-3764,09-3765, 10-1682); EEOC Pet. for Reh'g and
Suggestion for Reh'g En Banc,CRST, s%prai EEOC Br.
as Amicus Curiae, Whitten, supra(No. 09-1265); EEOC
Br. as Amicus Curiae, Wegers, supra (No. 02-3732);
E.EOC Br. as Amicus Curiae, Mack, supro" (No.02-7056).
The agency's consistent position warrants a measure of
deference. See Køsten v. Sa'i,nt-Gobain Perþrmønce
Plastics Corp., 131 S. Ct. L325, 1335 (2011) (giving
weight to EEOC's consistent position set forth in compliance manual and court of appeals briefs); Federal Erpress Corp. v. Ho\owecki,552 U.S. 389, 399 (2008) (not-

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

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29

ing, in deferring to EEOC guidance, that it had "been
binding on EEOC staff for at least five years").
2. The court of appeals initially adopted its restrictive view of supervisor liability under Title VII without
the benefit of the EEOC's guidance. Shortly after this
Court decided Faragher and Ellerth, the court of appeals held in Pørkins v. Ciuil Constructors of Illinois,
Inc., L63 EBd 1027 (?th Cir. 1998), that supervisory authority under those cases "primarily consists of the
power to hire, fire, demote, promote, transfer, or discipline an employee." Id,. at 1034. The Parlciøs court explained that "[a]bsent an entrustment of at least some of
this authority, an employee does not qualify as a supervisor for purposes lofl imputing liability to the employer." Ibi"d. In its decision below, the court of appeals reiterated that holding.
The EEOC issued its guidance shortly after the court
of appeals' decision in Pørkins, and certain judges then
called for the court of appeals to reconsider its holding.
See Rhod,øs, 359 EBd at 509 (Rovneq J., concurring in
part and concurring in the judgment); id. at 510
(Cudahy, J., concurring). The court of appeals, however,
has continued to hold that employees who assign tasks
and recommend discipline fail to qualify as supervisors.
Id. at506; see also Hallv. Bod,ine Elec. Co.,276F.3d345,
355 (?th Cir.2002) (finding no supervisory status where
harasser directed work, contributed to evaluations, and
trained victim). Consistent \Mith the EEOC's guidance,
this Court should reject the court of appeals' unduly restrictive approach and hold that supervisory liability extends to harassment by an employee who has authority
to direct the victim's daily work activities.

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30

C.

On The Existing Record

In This Case, I)avis Fails To

Qualify As Petitioner's Supervisor
For the reasons explained above, the court of appeals

erred in refusing to recognize thal supervisor liability
under Title VII extends to harassment by employees
with authority to direct the day-to-daywork activities of
their victims. But here, even under the correct legal
test, Davis-the only employeewhose supervising status
is in issue, see Pet. 29-would fail to qualify as petitioner's supervisor on the record as it currently stands.
At the summary judgment phase, the parties engaged
in substantial discovery of the facts pertaining to petitioner's claims. There is scant evidence in the resulting
record that Davis exercised the requisite authority over
petitioner's daily work activities. Petitioner's deposition
testimony describes no instances inwhich Davis actually
directed her work. J.A.102-248. Petitioner now points
to indicia in the record of Davis possessing a lead role in
the kitchen of some sort, see Pet. Br. 10, 42-43, but there
is no evidence describing the nature of any authority
over petitioner or whether the authority encompassed
control of day-to-day work activities. And petitioner
would be required to do more than demonstrate that
Davis possessed some minimal level of authority over
petitioner, because "someone who directs only a limited
number of tasks or assignments would not qualify as a
'supervisor."' Pet. App. 92a (EEOC Guidance).4
The record also does not demonstrate that petitioner "reasonably
believed" Davis was her supervisor. See Pet, App. 92a (EEOC Guidance) (noting that an employer may be vicariously liable "if the employee reasonably believed that the harasser had [supewisory] power," even if that belief is false). When asked whether she considered
Davis her supervisor at the time of their confrontation at the elevator
in April 2006, petitioner replied: "I don't know what she is." J.A.
a

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31

Petitioner did refer to Davis as a "supervisor" or
"kitchen supervisor" in various complaint forms. J.A.
28-29,45; Docket entry No. 60-12, at I. And another
employee stated that Kimes had told him Davis was a
supervisor. J.A. 385-387. Davis's job description also
states that she "lead[s] and directfs]" "kitchen parttime, substitute, and student employee helpers" and supervises "[k]itchen [a]ssistants and ls]ubstitutes." J.A.
L2-13. And Kimes acknowledged that Davis directed
employees "[a]t times." J.A. 367.
But even if Davis was labeled a "supervisor" and her
job description characterized her as supervising petitioner, that would not suffice. Supervisor status "is
based on * * * job function rather than job title" and
"must be based on the specific facts." Pet. App. 89a40a
(EEOC Guidance). The record as it stands contains no
specific facts demonstrating that Davis directed petitioner's day-to-day work. In fact, the record suggests
that either Kimes or the chef outlined petitioner's daily
tasks on "prep lists." Id,. al 4la-42a,72a. While Davis
on occasion may have handed petitioner her prep lists,
the record does not showthat Davis prepared them. See
J.L.74. And someone "\Mho merely relays other officials' instructions regarding work assignments" does not
qualify as a supervisor. Pet. App.92a (EEOC Guidance).
Nor would it be enough for petitioner to show that Davis
occasionally took the lead in the kitchen. An employer
may be liable where a temporary supervisor "commits
unlar,vful harassment of a subordinate while serving as
19?; see also Pet. App. 54a. Petitioner explained that, "one day she's
a supervisor; one day she's not. One day she's to tell people what to

do, and one day she's not." /bid. Asked whether Davis was her supewisor even "intermittently, once in a while," petitioner answered
that she was "not sure." J,A. 198.

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

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32

his or her supervisor." Ibid. Bttt here, the record contains only oblique references to any exercise of authority by Davis and fails to indicate that the harassment occurred during any such period.6
This Court on its own could review the reeord as it
presently stands to determine whether summary judgment r'vas appropriately granted on that record under
the correct legal standard. The Court's usual practice,
however, is to remand to the lower courts to apply the
correct standard as announced by this Court. See, e.9.,
AIIison Engine Co. v. United States ex rel. Sand'ørs,553
U.S. 662, 673 (2008); Sprint/United' Mgmt, Co. v. Mendelsohn,552 U.S. 379, 388 (2008); Tellabs, Inc. v. Malcor
Issues & Rights, Ltd.,55L U.S. 308, 329 (2007); Merclt
KGaAv. Integra Li,fesciences I, Ltd.,545 U.S. 193, 208
(2005). In any remand, the courts below presumably
would also have discretion to determine whether it
would be appropriate to allow petitioner to amend her
pleadings or supplement her discovery to attempt to satisfy the correct standard. See Ellerth,524 U.S. at 766.
CONCLUSION

The judgment of the court of appeals should be vacated and the case remanded for further proceedings
consistent with the Court's decision.

Respectfully submitted.

õ

Petitioner's obsewation that Davis "d[id not] clock in" may

indi

cate that Davis outranked petitioner in the organizatíonalhierarchy,
but it does not show that she had authority to direct petitioner's dayto-day activities. Pet. App. 54a; see also Mikels v. City of Dtnham,
183 F.3d 323, 334 (4th Cir, 1999) (finding no supervisory status where

harasser outranked victim but had "minimal" authority over her).

Case 5:13-cv-00255-C Document 25-1 Filed 03/18/14

Page 39 of 39 PageID 439

33

Dol¡alo
P. D,wro

T¡rorr¡¡s E. Ppnnz
As sistant Attorney

General Counsel

CanolyN L.'Wspnlpn
Actin

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s o ci,

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ener

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Counsel

DeNrul, T.

B. Vunnrr,r,I, Jn.

Sol,icitor General,

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eneral

Julrp L. GeNrz

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ANN O'CoNttpl,l,
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Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 1 of 41 PageID 440

EXHIBIT B

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14
Arnçri,ç,an Es
Hflñ¡1rlr.ËÉ

Page 2 of 41 PageID 441

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

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 3 of 41 PageID 442

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)

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 4 of 41 PageID 443

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)

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 5 of 41 PageID 444

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

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 6 of 41 PageID 445

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

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 7 of 41 PageID 446

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

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 8 of 41 PageID 447

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

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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)

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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

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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

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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

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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.

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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.

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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).

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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

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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).

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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

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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

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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-

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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.

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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.").

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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).

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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.

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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

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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.

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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-

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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-

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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).

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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).

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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.

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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.

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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.

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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-

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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.

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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.

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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.

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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.

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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.

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 40 of 41 PageID 479

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

Case 5:13-cv-00255-C Document 25-2 Filed 03/18/14

Page 41 of 41 PageID 480

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