The Meaning of “Because” in Employment Discrimination Law: Causation in Title VII Retaliation Cases after Gross

There are several employment discrimination statutes that together seek to safeguard equality in the workplace. Title VII of the Civil Rights Act of 1964 addresses discrimination based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act of 19672 (ADEA) addresses age discrimination. Both statutes make it unlawful for an employer to discriminate against an employee “because of” a protected characteristic. They also prohibit retaliation against an employee “because” the employee opposed a discriminatory practice. In Price Waterhouse v Hopkins, the Supreme Court first interpreted the words “because of” in the discrimination provision of Title VII as establishing a burden-shifting framework. This framework allows the employee to shift the burden of proof to her employer by showing that a protected characteristic played some part in the employer’s decision to take an adverse action against her, such as discharge or demotion. Yet in the ADEA context, “because of” was later interpreted by the Court in Gross v FBL Financial Services, Inc8 as requiring that the employee prove that age was a but-for cause of the employer’s decision, without the aid of burden shifting In Gross, the Supreme Court reasoned that, because Congress codified the burden-shifting framework for Title VII discrimination claims in response to Price Waterhouse, but did not similarly amend the ADEA, the burden-shifting framework is unavailable in the age discrimination context. 

Whether the pro-employee burden shifting of Price Waterhouse or the pro-employer standard of Gross should govern Title VII retaliation claims has currently split the lower courts. Three district courts hold that, because Congress codified burden shifting only for Title VII discrimination claims, the plaintiff cannot utilize burden shifting in the retaliation context. Similarly, the Seventh Circuit asserts that, unless Congress has explicitly provided otherwise, the plaintiff-employee must prove but-for causation, without any burden shifting, “in all suits under federal law.” By contrast, the Fifth Circuit and a fourth district court follow the earlier precedent of Price Waterhouse—which Gross did not explicitly overturn—by applying burden shifting in the Title VII retaliation context. What remains of Price Waterhouse and its burden-shifting framework, and whether and to what extent the logic of Gross applies to Title VII, is the subject of this Comment.