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Abstract

Both Title VII of the Civil Rights Act (CRA) of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA) prohibit employers from making an adverse employment decision “because of” certain improper criteria. The Supreme Court’s opinion in Gross v. FBL Financial Services, Inc. explored the plain meaning of “because of” to determine the threshold for causation required under the ADEA. Curiously, the Gross Court came to a different conclusion than the Justices who engaged in the same exploration of “because of” under Title VII in Price Waterhouse v. Hopkins. The Court’s underdeveloped plain meaning argument and failure to elevate its choice of statutory interpretation over the obvious and compelling alternatives call into question whether these portions of the opinion were determinative of the holding. The Gross Court’s skepticism of the motivating factor standard and mixed-motive burden-shifting scheme that developed under the Title VII analysis, though not as thoroughly explored in the Court’s opinion, provides a more intelligible rationale for the outcome in Gross. In maintaining that this was an exercise in scrutinizing the language of the statute instead of explaining the persuasive force of the practical considerations, the Court created confusion over whether the Price Waterhouse analysis might still apply to other statutes with “because of” or other similar causation language. Some of the confusion in the Court’s opinion also stems from the conflation of causation standards with burden schemes. While it makes sense that Gross addressed both causation and burdens, given that Price Waterhouse created the burden-shifting scheme in part to balance the plaintiff’s lower, motivating-factor causation burden, this Note will attempt to separate the ideas in an effort to show how the respective opinions grappled with the proper allocation of the burden of persuasion in discrimination cases, the difficult problem of dissecting the motivations for an employment decision, and the heightened evidentiary requirement, if any, under a burden-shifting scheme. After detailing the complex history of mixed-motive burden-shifting in discrimination cases that led to this particular brand of ambiguity over congressional intent and sampling the variety produced when lower courts have applied Gross to other statutes, this Note will make the case that the majority’s decision was driven by an understanding of the practical difficulties that mixed-motive burden-shifting has created, a skepticism about how well the doctrine accomplishes justice, and a legal conservatism that favors traditional causation and burden schemes. Further, the Note will argue that Gross is not, as the Court’s reasoning would suggest, about the level of causation burden that must be satisfied but rather about who bears that burden. Though Congress has codified the mixed-motive burden-shifting scheme in the language of Title VII through post-Price Waterhouse amendments, Gross reverts to the allocation that speaks to simplicity and judicial restraint by applying the traditional default causation standard: that the plaintiff bears the burden of persuasion by a preponderance of the evidence. Finally, the Note will make the case that while Gross appears to cast doubt on all Title VII burden-shifting precedents, the Court’s attention to practical applications and inclination toward traditional burden structures might be compatible with the shifting burden of production under McDonnell Douglas Corp. v. Green, which provides a sufficient guard against the inequities of asymmetric information, maintains the least restrictive burden on employers, provides for the most intuitive jury instructions, and maintains the traditional burden of persuasion.

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