University of Tex. Southwestern Medical Center v. Nassar , 133 S. Ct. 2517 ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL
CENTER v. NASSAR
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 12–484. Argued April 24, 2013—Decided June 24, 2013
Petitioner, a university medical center (University) that is part of the
University of Texas system, specializes in medical education. It has
an affiliation agreement with Parkland Memorial Hospital (Hospi-
tal), which requires the Hospital to offer vacant staff physician posts
to University faculty members. Respondent, a physician of Middle
Eastern descent who was both a University faculty member and a
Hospital staff physician, claimed that Dr. Levine, one of his supervi-
sors at the University, was biased against him on account of his reli-
gion and ethnic heritage. He complained to Dr. Fitz, Levine’s super-
visor. But after he arranged to continue working at the Hospital
without also being on the University’s faculty, he resigned his teach-
ing post and sent a letter to Fitz and others, stating that he was leav-
ing because of Levine’s harassment. Fitz, upset at Levine’s public
humiliation and wanting public exoneration for her, objected to the
Hospital’s job offer, which was then withdrawn. Respondent filed
suit, alleging two discrete Title VII violations. First, he alleged that
Levine’s racially and religiously motivated harassment had resulted
in his constructive discharge from the University, in violation of 42
U. S. C. §2000e–2(a), which prohibits an employer from discriminat-
ing against an employee “because of such individual’s race, color, re-
ligion, sex, and national origin” (referred to here as status-based dis-
crimination). Second, he claimed that Fitz’s efforts to prevent the
Hospital from hiring him were in retaliation for complaining about
Levine’s harassment, in violation of §2000e–3(a), which prohibits
employer retaliation “because [an employee] has opposed . . . an un-
lawful employment practice . . . or . . . made a [Title VII] charge.”
The jury found for respondent on both claims. The Fifth Circuit va-
2 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Syllabus
cated as to the constructive-discharge claim, but affirmed as to the
retaliation finding on the theory that retaliation claims brought un-
der §2000e–3(a)—like §2000e–2(a) status-based claims—require only
a showing that retaliation was a motivating factor for the adverse
employment action, not its but-for cause, see §2000e–2(m). And it
found that the evidence supported a finding that Fitz was motivated,
at least in part, to retaliate against respondent for his complaints
about Levine.
Held: Title VII retaliation claims must be proved according to tradi-
tional principles of but-for causation, not the lessened causation test
stated in §2000e–2(m). Pp. 5–23.
(a) In defining the proper causation standard for Title VII retalia-
tion claims, it is presumed that Congress incorporated tort law’s cau-
sation in fact standard—i.e., proof that the defendant’s conduct did in
fact cause the plaintiff’s injury—absent an indication to the contrary
in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285. An em-
ployee alleging status-based discrimination under §2000e–2 need not
show “but-for” causation. It suffices instead to show that the motive
to discriminate was one of the employer’s motives, even if the em-
ployer also had other, lawful motives for the decision. This principle
is the result of Price Waterhouse v. Hopkins, 490 U. S. 228, and the
ensuing Civil Rights Act of 1991 (1991 Act), which substituted a new
burden-shifting framework for the one endorsed by Price Waterhouse.
As relevant here, that Act added a new subsection to §2000e–2,
providing that “an unlawful employment practice is established when
the complaining party demonstrates that race, color, religion, sex, or
national origin was a motivating factor for any employment practice,
even though other factors also motivated the practice,” §2000e–2(m).
Also relevant here is this Court’s decision in Gross v. FBL Finan­
cial Services, Inc., 557 U. S. 167, 176, which interprets the Age Dis-
crimination in Employment Act of 1967 (ADEA) phrase “because of
. . . age,” 29 U. S. C. §623(a)(1). Gross holds two insights that inform
the analysis of this case. The first is textual and concerns the proper
interpretation of the term “because” as it relates to the principles of
causation underlying both §623(a) and §2000e–3(a). The second is
the significance of Congress’ structural choices in both Title VII itself
and the 1991 Act. Pp. 5–11.
(b) Title VII’s antiretaliation provision appears in a different sec-
tion from its status-based discrimination ban. And, like §623(a)(1),
the ADEA provision in Gross, §2000e–3(a) makes it unlawful for an
employer to take adverse employment action against an employee
“because” of certain criteria. Given the lack of any meaningful textu-
al difference between §2000e–3(a) and §623(a)(1), the proper conclu-
sion is that Title VII retaliation claims require proof that the desire
Cite as: 570 U. S. ____ (2013) 3
Syllabus
to retaliate was the but-for cause of the challenged employment ac-
tion. Respondent and the United States maintain that §2000e–2(m)’s
motivating-factor test applies, but that reading is flawed. First, it is
inconsistent with the provision’s plain language, which addresses on-
ly race, color, religion, sex, and national origin discrimination and
says nothing about retaliation. Second, their reading is inconsistent
with the statute’s design and structure. Congress inserted the moti-
vating-factor provision as a subsection within §2000e–2, which deals
only with status-based discrimination. The conclusion that Congress
acted deliberately in omitting retaliation claims from §2000–2(m) is
reinforced by the fact that another part of the 1991 Act, §109, ex-
pressly refers to all unlawful employment actions. See EEOC v. Ara­
bian American Oil Co., 499 U. S. 244, 256. Third, the cases they rely
on, which state the general proposition that Congress’ enactment of a
broadly phrased antidiscrimination statute may signal a concomitant
intent to ban retaliation against individuals who oppose that discrim-
ination, see, e.g., CBOCS West, Inc. v. Humphries, 553 U. S. 442,
452–453; Gómez-Pérez v. Potter, 553 U. S. 474, do not support the
quite different rule that every reference to race, color, creed, sex, or
nationality in an antidiscrimination statute is to be treated as a syn-
onym for “retaliation,” especially in a precise, complex, and exhaus-
tive statute like Title VII. The Americans with Disabilities Act of
1990, which contains seven paragraphs of detailed description of the
practices constituting prohibited discrimination, as well as an ex-
press antiretaliation provision, and which was passed only a year be-
fore §2000e–2(m)’s enactment, shows that when Congress elected to
address retaliation as part of a detailed statutory scheme, it did so
clearly. Pp. 11–17.
(c) The proper interpretation and implementation of §2000e–3(a)
and its causation standard are of central importance to the fair and
responsible allocation of resources in the judicial and litigation sys-
tems, particularly since retaliation claims are being made with ever-
increasing frequency. Lessening the causation standard could also
contribute to the filing of frivolous claims, siphoning resources from
efforts by employers, agencies, and courts to combat workplace har-
assment. Pp. 18–20.
(d) Respondent and the Government argue that their view would
be consistent with longstanding agency views contained in an Equal
Employment Opportunity Commission guidance manual, but the
manual’s explanations for its views lack the persuasive force that is a
necessary precondition to deference under Skidmore v. Swift & Co.,
323 U. S. 134, 140. Respondent’s final argument—that if §2000e–
2(m) does not control, then the Price Waterhouse standard should—is
foreclosed by the 1991 Act’s amendments to Title VII, which dis-
4 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Syllabus
placed the Price Waterhouse framework. Pp. 20–23.
674 F. 3d 448, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a
dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–484
_________________
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL
CENTER, PETITIONER v. NAIEL NASSAR
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2013]
JUSTICE KENNEDY delivered the opinion of the Court.
When the law grants persons the right to compensation
for injury from wrongful conduct, there must be some
demonstrated connection, some link, between the injury
sustained and the wrong alleged. The requisite relation
between prohibited conduct and compensable injury is
governed by the principles of causation, a subject most
often arising in elaborating the law of torts. This case
requires the Court to define those rules in the context of
Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e
et seq., which provides remedies to employees for injuries
related to discriminatory conduct and associated wrongs
by employers.
Title VII is central to the federal policy of prohibiting
wrongful discrimination in the Nation’s workplaces and in
all sectors of economic endeavor. This opinion discusses
the causation rules for two categories of wrongful employer
conduct prohibited by Title VII. The first type is called,
for purposes of this opinion, status-based discrimination.
The term is used here to refer to basic workplace protec-
tion such as prohibitions against employer discrimination
2 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
on the basis of race, color, religion, sex, or national origin,
in hiring, firing, salary structure, promotion and the like.
See §2000e–2(a). The second type of conduct is employer
retaliation on account of an employee’s having opposed,
complained of, or sought remedies for, unlawful workplace
discrimination. See §2000e–3(a).
An employee who alleges status-based discrimination
under Title VII need not show that the causal link be-
tween injury and wrong is so close that the injury would
not have occurred but for the act. So-called but-for causa-
tion is not the test. It suffices instead to show that the
motive to discriminate was one of the employer’s motives,
even if the employer also had other, lawful motives that
were causative in the employer’s decision. This principle
is the result of an earlier case from this Court, Price Water­
house v. Hopkins, 490 U. S. 228 (1989), and an ensuing
statutory amendment by Congress that codified in part
and abrogated in part the holding in Price Waterhouse, see
§§2000e–2(m), 2000e–5(g)(2)(B). The question the Court
must answer here is whether that lessened causation
standard is applicable to claims of unlawful employer
retaliation under §2000e–3(a).
Although the Court has not addressed the question of
the causation showing required to establish liability for a
Title VII retaliation claim, it has addressed the issue of
causation in general in a case involving employer discrim-
ination under a separate but related statute, the Age
Discrimination in Employment Act of 1967 (ADEA), 29
U. S. C. §623. See Gross v. FBL Financial Services, Inc.,
557 U. S. 167 (2009). In Gross, the Court concluded that
the ADEA requires proof that the prohibited criterion was
the but-for cause of the prohibited conduct. The holding
and analysis of that decision are instructive here.
I
Petitioner, the University of Texas Southwestern Medi-
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
cal Center (University), is an academic institution within
the University of Texas system. The University specializes
in medical education for aspiring physicians, health
professionals, and scientists. Over the years, the Univer-
sity has affiliated itself with a number of healthcare facili-
ties including, as relevant in this case, Parkland Memorial
Hospital (Hospital). As provided in its affiliation agree-
ment with the University, the Hospital permits the Uni-
versity’s students to gain clinical experience working in its
facilities. The agreement also requires the Hospital to
offer empty staff physician posts to the University’s faculty
members, see App. 361–362, 366, and, accordingly, most of
the staff physician positions at the Hospital are filled by
those faculty members.
Respondent is a medical doctor of Middle Eastern de-
scent who specializes in internal medicine and infectious
diseases. In 1995, he was hired to work both as a member
of the University’s faculty and a staff physician at the
Hospital. He left both positions in 1998 for additional
medical education and then returned in 2001 as an assis-
tant professor at the University and, once again, as a
physician at the Hospital.
In 2004, Dr. Beth Levine was hired as the University’s
Chief of Infectious Disease Medicine. In that position
Levine became respondent’s ultimate (though not direct)
superior. Respondent alleged that Levine was biased
against him on account of his religion and ethnic heritage,
a bias manifested by undeserved scrutiny of his billing
practices and productivity, as well as comments that
“ ‘Middle Easterners are lazy.’ ” 674 F. 3d 448, 450 (CA5
2012). On different occasions during his employment,
respondent met with Dr. Gregory Fitz, the University’s
Chair of Internal Medicine and Levine’s supervisor, to
complain about Levine’s alleged harassment. Despite
obtaining a promotion with Levine’s assistance in 2006,
respondent continued to believe that she was biased
4 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
against him. So he tried to arrange to continue working
at the Hospital without also being on the University’s
faculty. After preliminary negotiations with the Hospital
suggested this might be possible, respondent resigned his
teaching post in July 2006 and sent a letter to Dr. Fitz
(among others), in which he stated that the reason for his
departure was harassment by Levine. That harassment,
he asserted, “ ‘stems from . . . religious, racial and cultural
bias against Arabs and Muslims.’ ” Id., at 451. After
reading that letter, Dr. Fitz expressed consternation at
respondent’s accusations, saying that Levine had been
“publicly humiliated by th[e] letter” and that it was “very
important that she be publicly exonerated.” App. 41.
Meanwhile, the Hospital had offered respondent a job as
a staff physician, as it had indicated it would. On learning
of that offer, Dr. Fitz protested to the Hospital, asserting
that the offer was inconsistent with the affiliation agree-
ment’s requirement that all staff physicians also be members
of the University faculty. The Hospital then withdrew
its offer.
After exhausting his administrative remedies, respond-
ent filed this Title VII suit in the United States District
Court for the Northern District of Texas. He alleged two
discrete violations of Title VII. The first was a status-
based discrimination claim under §2000e–2(a). Respondent
alleged that Dr. Levine’s racially and religiously moti-
vated harassment had resulted in his constructive dis-
charge from the University. Respondent’s second claim
was that Dr. Fitz’s efforts to prevent the Hospital from
hiring him were in retaliation for complaining about Dr.
Levine’s harassment, in violation of §2000e–3(a). 674
F. 3d, at 452. The jury found for respondent on both
claims. It awarded him over $400,000 in backpay and
more than $3 million in compensatory damages. The
District Court later reduced the compensatory damages
award to $300,000.
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
On appeal, the Court of Appeals for the Fifth Circuit
affirmed in part and vacated in part. The court first con-
cluded that respondent had submitted insufficient evi-
dence in support of his constructive-discharge claim, so it
vacated that portion of the jury’s verdict. The court af-
firmed as to the retaliation finding, however, on the theory
that retaliation claims brought under §2000e–3(a)—like
claims of status-based discrimination under §2000e–2(a)—
require only a showing that retaliation was a motivating
factor for the adverse employment action, rather than its
but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox
Corp., 602 F. 3d 320, 330 (CA5 2010)). It further held that
the evidence supported a finding that Dr. Fitz was moti-
vated, at least in part, to retaliate against respondent for
his complaints against Levine. The Court of Appeals then
remanded for a redetermination of damages in light of its
decision to vacate the constructive-discharge verdict.
Four judges dissented from the court’s decision not to
rehear the case en banc, arguing that the Circuit’s appli-
cation of the motivating-factor standard to retaliation
cases was “an erroneous interpretation of [Title VII] and
controlling caselaw” and should be overruled en banc. 688
F. 3d 211, 213–214 (CA5 2012) (Smith, J., dissenting from
denial of rehearing en banc).
Certiorari was granted. 568 U. S. ___ (2013).
II
A
This case requires the Court to define the proper stand-
ard of causation for Title VII retaliation claims. Causation
in fact—i.e., proof that the defendant’s conduct did in fact
cause the plaintiff ’s injury—is a standard requirement of
any tort claim, see Restatement of Torts §9 (1934) (defini-
tion of “legal cause”); §431, Comment a (same); §279, and
Comment c (intentional infliction of physical harm); §280
(other intentional torts); §281(c) (negligence). This in-
6 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
cludes federal statutory claims of workplace discrimina-
tion. Hazen Paper Co. v. Biggins, 507 U. S. 604, 610
(1993) (In intentional-discrimination cases, “liability
depends on whether the protected trait” “actually motivated
the employer’s decision” and “had a determinative in-
fluence on the outcome”); Los Angeles Dept. of Water and
Power v. Manhart, 435 U. S. 702, 711 (1978) (explaining
that the “simple test” for determining a discriminatory
employment practice is “whether the evidence shows
treatment of a person in a manner which but for that
person’s sex would be different” (internal quotation marks
omitted)).
In the usual course, this standard requires the plaintiff
to show “that the harm would not have occurred” in the
absence of—that is, but for—the defendant’s conduct.
Restatement of Torts §431, Comment a (negligence);
§432(1), and Comment a (same); see §279, and Comment c
(intentional infliction of bodily harm); §280 (other inten-
tional torts); Restatement (Third) of Torts: Liability for
Physical and Emotional Harm §27, and Comment b (2010)
(noting the existence of an exception for cases where an
injured party can prove the existence of multiple, inde-
pendently sufficient factual causes, but observing that
“cases invoking the concept are rare”). See also Restate-
ment (Second) of Torts §432(1) (1963 and 1964) (negli-
gence claims); §870, Comment l (intentional injury to
another); cf. §435a, and Comment a (legal cause for inten-
tional harm). It is thus textbook tort law that an action “is
not regarded as a cause of an event if the particular event
would have occurred without it.” W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts
265 (5th ed. 1984). This, then, is the background against
which Congress legislated in enacting Title VII, and these
are the default rules it is presumed to have incorporated,
absent an indication to the contrary in the statute itself.
See Meyer v. Holley, 537 U. S. 280, 285 (2003); Carey v.
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
Piphus, 435 U. S. 247, 257–258 (1978).
B
Since the statute’s passage in 1964, it has prohibited
employers from discriminating against their employees on
any of seven specified criteria. Five of them—race, color,
religion, sex, and national origin—are personal character-
istics and are set forth in §2000e–2. (As noted at the
outset, discrimination based on these five characteristics
is called status-based discrimination in this opinion.) And
then there is a point of great import for this case: The two
remaining categories of wrongful employer conduct—the
employee’s opposition to employment discrimination, and
the employee’s submission of or support for a complaint
that alleges employment discrimination—are not wrongs
based on personal traits but rather types of protected
employee conduct. These latter two categories are covered
by a separate, subsequent section of Title VII, §2000e–
3(a).
Under the status-based discrimination provision, it is an
“unlawful employment practice” for an employer “to dis-
criminate against any individual . . . because of such
individual’s race, color, religion, sex, or national origin.”
§2000e–2(a). In its 1989 decision in Price Waterhouse, the
Court sought to explain the causation standard imposed
by this language. It addressed in particular what it means
for an action to be taken “because of ” an individual’s race,
religion, or nationality. Although no opinion in that case
commanded a majority, six Justices did agree that a plain-
tiff could prevail on a claim of status-based discrimination
if he or she could show that one of the prohibited traits
was a “motivating” or “substantial” factor in the employ-
er’s decision. 490 U. S., at 258 (plurality opinion); id., at
259 (White, J., concurring in judgment); id., at 276(O’Connor, J., concurring in judgment). If the plaintiff
made that showing, the burden of persuasion would shift
8 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
to the employer, which could escape liability if it could
prove that it would have taken the same employment
action in the absence of all discriminatory animus. Id., at
258 (plurality opinion); id., at 259–260 (opinion of White,
J.); id., at 276–277 (opinion of O’Connor, J.). In other
words, the employer had to show that a discriminatory
motive was not the but-for cause of the adverse employ-
ment action.
Two years later, Congress passed the Civil Rights Act of
1991 (1991 Act), 105 Stat. 1071. This statute (which had
many other provisions) codified the burden-shifting and
lessened-causation framework of Price Waterhouse in part
but also rejected it to a substantial degree. The legislation
first added a new subsection to the end of §2000e–2, i.e.,
Title VII’s principal ban on status-based discrimination.
See §107(a), 105 Stat. 1075. The new provision, §2000e–
2(m), states:
“[A]n unlawful employment practice is established
when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other
factors also motivated the practice.”
This, of course, is a lessened causation standard.
The 1991 Act also abrogated a portion of Price Water­
house’s framework by removing the employer’s ability to
defeat liability once a plaintiff proved the existence of an
impermissible motivating factor. See Gross, 557 U. S., at
178, n. 5. In its place, Congress enacted §2000e–5(g)(2),
which provides:
“(B) On a claim in which an individual proves a vio-
lation under section 2000e–2(m) of this title and [the
employer] demonstrates that [it] would have taken
the same action in the absence of the impermissible
motivating factor, the court—
“(i) may grant declaratory relief, injunctive relief . . .
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
and [limited] attorney’s fees and costs . . . ; and
“(ii) shall not award damages or issue an order
requiring any admission, reinstatement, hiring, promo-
tion, or payment . . . .”
So, in short, the 1991 Act substituted a new burden-
shifting framework for the one endorsed by Price Water­
house. Under that new regime, a plaintiff could obtain
declaratory relief, attorney’s fees and costs, and some
forms of injunctive relief based solely on proof that race,
color, religion, sex, or nationality was a motivating factor
in the employment action; but the employer’s proof that it
would still have taken the same employment action would
save it from monetary damages and a reinstatement
order. See Gross, 557 U. S., at 178, n. 5; see also id., at
175, n. 2, 177, n. 3.
After Price Waterhouse and the 1991 Act, considerable
time elapsed before the Court returned again to the mean-
ing of “because” and the problem of causation. This time it
arose in the context of a different, yet similar statute, the
ADEA, 29 U. S. C. §623(a). See Gross, supra. Much like
the Title VII statute in Price Waterhouse, the relevant
portion of the ADEA provided that “ ‘[i]t shall be unlawful
for an employer . . . to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any
individual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such indi-
vidual’s age.’ ” 557 U. S., at 176 (quoting §623(a)(1);
emphasis and ellipsis in original).
Concentrating first and foremost on the meaning of the
phrase “ ‘because of . . . age,’ ” the Court in Gross explained
that the ordinary meaning of “ ‘because of ’ ” is “ ‘by reason
of ’ ” or “ ‘on account of.’ ” Id., at 176 (citing 1 Webster’s
Third New International Dictionary 194 (1966); 1 Oxford
English Dictionary 746 (1933); The Random House Dic-
tionary of the English Language 132 (1966); emphasis in
10 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
original). Thus, the “requirement that an employer took
adverse action ‘because of ’ age [meant] that age was the
‘reason’ that the employer decided to act,” or, in other
words, that “age was the ‘but-for’ cause of the employer’s
adverse decision.” 557 U. S., at 176. See also Safeco Ins.
Co. of America v. Burr, 551 U. S. 47, 63–64, and n. 14
(2007) (noting that “because of ” means “based on” and
that “ ‘based on’ indicates a but-for causal relationship”);
Holmes v. Securities Investor Protection Corporation, 503
U. S. 258, 265–266 (1992) (equating “by reason of ” with
“ ‘but for’ cause”).
In the course of approving this construction, Gross
declined to adopt the interpretation endorsed by the plu-
rality and concurring opinions in Price Waterhouse. Not-
ing that “the ADEA must be ‘read . . . the way Congress
wrote it,’ ” 557 U. S., at 179 (quoting Meacham v. Knolls
Atomic Power Laboratory, 554 U. S. 84, 102 (2008)), the
Court concluded that “the textual differences between
Title VII and the ADEA” “prevent[ed] us from applying
Price Waterhouse . . . to federal age discrimination claims,”
557 U. S., at 175, n. 2. In particular, the Court stressed
the congressional choice not to add a provision like
§2000e–2(m) to the ADEA despite making numerous other
changes to the latter statute in the 1991 Act. Id., at 174–
175 (citing EEOC v. Arabian American Oil Co., 499 U. S.
244, 256 (1991)); 557 U. S., at 177, n. 3 (citing 14 Penn
Plaza LLC v. Pyett, 556 U. S. 247, 270 (2009)).
Finally, the Court in Gross held that it would not be
proper to read Price Waterhouse as announcing a rule that
applied to both statutes, despite their similar wording and
near-contemporaneous enactment. 557 U. S., at 178, n. 5.
This different reading was necessary, the Court concluded,
because Congress’ 1991 amendments to Title VII, includ-
ing its “careful tailoring of the ‘motivating factor’ claim”
and the substitution of §2000e–5(g)(2)(B) for Price Water­
house’s full affirmative defense, indicated that the moti-
Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
vating-factor standard was not an organic part of Title VII
and thus could not be read into the ADEA. See 557 U. S.,
at 178, n. 5.
In Gross, the Court was careful to restrict its analysis to
the statute before it and withhold judgment on the proper
resolution of a case, such as this, which arose under Title
VII rather than the ADEA. But the particular confines of
Gross do not deprive it of all persuasive force. Indeed,
that opinion holds two insights for the present case. The
first is textual and concerns the proper interpretation of
the term “because” as it relates to the principles of causa-
tion underlying both §623(a) and §2000e–3(a). The second
is the significance of Congress’ structural choices in both
Title VII itself and the law’s 1991 amendments. These
principles do not decide the present case but do inform its
analysis, for the issues possess significant parallels.
III
A
As noted, Title VII’s antiretaliation provision, which is
set forth in §2000e–3(a), appears in a different section
from Title VII’s ban on status-based discrimination. The
antiretaliation provision states, in relevant part:
“It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
. . . because he has opposed any practice made an
unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”
This enactment, like the statute at issue in Gross,
makes it unlawful for an employer to take adverse em-
ployment action against an employee “because” of certain
criteria. Cf. 29 U. S. C. §623(a)(1). Given the lack of any
meaningful textual difference between the text in this
12 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
statute and the one in Gross, the proper conclusion here,
as in Gross, is that Title VII retaliation claims require
proof that the desire to retaliate was the but-for cause of
the challenged employment action. See Gross, supra, at
176.
The principal counterargument offered by respondent
and the United States relies on their different understand-
ing of the motivating-factor section, which—on its face—
applies only to status discrimination, discrimination on
the basis of race, color, religion, sex, and national origin.
In substance, they contend that: (1) retaliation is defined
by the statute to be an unlawful employment practice; (2)
§2000e–2(m) allows unlawful employment practices to be
proved based on a showing that race, color, religion, sex, or
national origin was a motivating factor for—and not nec-
essarily the but-for factor in—the challenged employment
action; and (3) the Court has, as a matter of course, held
that “retaliation for complaining about race discrimination
is ‘discrimination based on race.’ ” Brief for United States
as Amicus Curiae 14; see id., at 11–14; Brief for Respond-
ent 16–19.
There are three main flaws in this reading of §2000e–
2(m). The first is that it is inconsistent with the provi-
sion’s plain language. It must be acknowledged that
because Title VII defines “unlawful employment practice”
to include retaliation, the question presented by this case
would be different if §2000e–2(m) extended its coverage to
all unlawful employment practices. As actually written,
however, the text of the motivating-factor provision, while
it begins by referring to “unlawful employment practices,”
then proceeds to address only five of the seven prohibited
discriminatory actions—actions based on the employee’s
status, i.e., race, color, religion, sex, and national origin.
This indicates Congress’ intent to confine that provision’s
coverage to only those types of employment practices. The
text of §2000e–2(m) says nothing about retaliation claims.
Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
Given this clear language, it would be improper to con-
clude that what Congress omitted from the statute is
nevertheless within its scope. Gardner v. Collins, 2 Pet.
58, 93 (1829) (“What the legislative intention was, can be
derived only from the words they have used; and we can-
not speculate beyond the reasonable import of these
words”); see Sebelius v. Cloer, 569 U. S. ___, ___ (2013)
(slip op., at 8).
The second problem with this reading is its inconsistency
with the design and structure of the statute as a whole.
See Gross, 557 U. S., at 175, n. 2, 178, n. 5. Just as Con-
gress’ choice of words is presumed to be deliberate, so too
are its structural choices. See id., at 177, n. 3. When
Congress wrote the motivating-factor provision in 1991, it
chose to insert it as a subsection within §2000e–2, which
contains Title VII’s ban on status-based discrimination,
§§2000e–2(a) to (d), (l), and says nothing about retaliation.
See 1991 Act, §107(a), 105 Stat. 1075 (directing that
“§2000e–2 . . . [be] further amended by adding at the end
the following new subsection . . . (m)”). The title of the
section of the 1991 Act that created §2000e–2(m)—
“Clarifying prohibition against impermissible considera-
tion of race, color, religion, sex, or national origin in
employment practices”—also indicates that Congress
determined to address only claims of status-based
discrimination, not retaliation. See §107(a), id., at 1075.
What is more, a different portion of the 1991 Act con-
tains an express reference to all unlawful employment
actions, thereby reinforcing the conclusion that Congress
acted deliberately when it omitted retaliation claims from
§2000e–2(m). See Arabian American Oil Co., 499 U. S., at
256 (congressional amendment of ADEA on a similar
subject coupled with congressional failure to amend Title
VII weighs against conclusion that the ADEA’s standard
applies to Title VII); see also Gross, supra, at 177, n. 3.
The relevant portion of the 1991 Act, §109(b), allowed
14 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
certain overseas operations by U. S. employers to engage
in “any practice prohibited by section 703 or 704,” i.e.,
§2000e–2 or §2000e–3, “if compliance with such section
would cause such employer . . . to violate the law of the
foreign country in which such workplace is located.” 105
Stat. 1077.
If Congress had desired to make the motivating-factor
standard applicable to all Title VII claims, it could have
used language similar to that which it invoked in §109.
See Arabian American Oil Co., supra, at 256. Or, it could
have inserted the motivating-factor provision as part of a
section that applies to all such claims, such as §2000e–5,
which establishes the rules and remedies for all Title VII
enforcement actions. See FDA v. Brown & Williamson
Tobacco Corp., 529 U. S. 120, 160 (2000). But in writing
§2000e–2(m), Congress did neither of those things, and
“[w]e must give effect to Congress’ choice.” Gross, supra,
at 177, n. 3.
The third problem with respondent’s and the Govern-
ment’s reading of the motivating-factor standard is in its
submission that this Court’s decisions interpreting federal
antidiscrimination law have, as a general matter, treated
bans on status-based discrimination as also prohibiting
retaliation. In support of this proposition, both respond-
ent and the United States rely upon decisions in which
this Court has “read [a] broadly worded civil rights statute
. . . as including an antiretaliation remedy.” CBOCS West,
Inc. v. Humphries, 553 U. S. 442, 452–453 (2008). In
CBOCS, for example, the Court held that 42 U. S. C.
§1981—which declares that all persons “shall have the
same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens”—prohibits not only racial dis-
crimination but also retaliation against those who oppose
it. 553 U. S., at 445. And in Gómez-Pérez v. Potter, 553
U. S. 474 (2008), the Court likewise read a bar on retalia-
tion into the broad wording of the federal-employee provi-
Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
sions of the ADEA. Id., at 479, 487 (“All personnel actions
affecting [federal] employees . . . who are at least 40 years
of age . . . shall be made free from any discrimination
based on age,” 29 U. S. C. §633a(a)); see also Jackson v.
Birmingham Bd. of Ed., 544 U. S. 167, 173, 179 (2005) (20
U. S. C. §1681(a) (Title IX)); Sullivan v. Little Hunting
Park, Inc., 396 U. S. 229, 235, n. 3, 237 (1969) (42 U. S. C.
§1982).
These decisions are not controlling here. It is true these
cases do state the general proposition that Congress’
enactment of a broadly phrased antidiscrimination statute
may signal a concomitant intent to ban retaliation against
individuals who oppose that discrimination, even where
the statute does not refer to retaliation in so many words.
What those cases do not support, however, is the quite
different rule that every reference to race, color, creed, sex,
or nationality in an antidiscrimination statute is to be
treated as a synonym for “retaliation.” For one thing,
§2000e–2(m) is not itself a substantive bar on discrimina-
tion. Rather, it is a rule that establishes the causation
standard for proving a violation defined elsewhere in Title
VII. The cases cited by respondent and the Government
do not address rules of this sort, and those precedents are
of limited relevance here.
The approach respondent and the Government suggest
is inappropriate in the context of a statute as precise,
complex, and exhaustive as Title VII. As noted, the laws
at issue in CBOCS, Jackson, and Gómez-Pérez were broad,
general bars on discrimination. In interpreting them the
Court concluded that by using capacious language Con-
gress expressed the intent to bar retaliation in addition to
status-based discrimination. See Gómez-Pérez, supra, at
486–488. In other words, when Congress’ treatment of the
subject of prohibited discrimination was both broad and
brief, its omission of any specific discussion of retaliation
was unremarkable.
16 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
If Title VII had likewise been phrased in broad and
general terms, respondent’s argument might have more
force. But that is not how Title VII was written, which
makes it incorrect to infer that Congress meant anything
other than what the text does say on the subject of retalia-
tion. Unlike Title IX, §1981, §1982, and the federal-sector
provisions of the ADEA, Title VII is a detailed statutory
scheme. This statute enumerates specific unlawful em-
ployment practices. See §§2000e–2(a)(1), (b), (c)(1), (d)
(status-based discrimination by employers, employment
agencies, labor organizations, and training programs,
respectively); §2000e–2(l) (status-based discrimination in
employment-related testing); §2000e–3(a) (retaliation for
opposing, or making or supporting a complaint about,
unlawful employment actions); §2000e–3(b) (advertising a
preference for applicants of a particular race, color, reli-
gion, sex, or national origin). It defines key terms, see
§2000e, and exempts certain types of employers, see
§2000e–1. And it creates an administrative agency with
both rulemaking and enforcement authority. See
§§2000e–5, 2000e–12.
This fundamental difference in statutory structure
renders inapposite decisions which treated retaliation as
an implicit corollary of status-based discrimination. Text
may not be divorced from context. In light of Congress’
special care in drawing so precise a statutory scheme, it
would be improper to indulge respondent’s suggestion that
Congress meant to incorporate the default rules that apply
only when Congress writes a broad and undifferentiated
statute. See Gómez-Pérez, supra, at 486–488 (when con-
struing the broadly worded federal-sector provision of the
ADEA, Court refused to draw inferences from Congress’
amendments to the detailed private-sector provisions);
Arabian American Oil Co., 499 U. S., at 256; cf. Jackson,
supra, at 175 (distinguishing Title IX’s “broadly written
general prohibition on discrimination” from Title VII’s
Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
“greater detail [with respect to] the conduct that consti-
tutes discrimination”).
Further confirmation of the inapplicability of §2000e–
2(m) to retaliation claims may be found in Congress’
approach to the Americans with Disabilities Act of 1990
(ADA), 104 Stat. 327. In the ADA Congress provided not
just a general prohibition on discrimination “because of
[an individual’s] disability,” but also seven paragraphs of
detailed description of the practices that would constitute
the prohibited discrimination, see §§102(a), (b)(1)–(7), id.,
at 331–332 (codified at 42 U. S. C. §12112). And, most
pertinent for present purposes, it included an express
antiretaliation provision, see §503(a), 104 Stat. 370 (codi-
fied at 42 U. S. C. §12203). That law, which Congress
passed only a year before enacting §2000e–2(m) and which
speaks in clear and direct terms to the question of retalia-
tion, rebuts the claim that Congress must have intended
to use the phrase “race, color, religion, sex, or national
origin” as the textual equivalent of “retaliation.” To the
contrary, the ADA shows that when Congress elected to
address retaliation as part of a detailed statutory scheme,
it did so in clear textual terms.
The Court confronted a similar structural dispute in
Lehman v. Nakshian, 453 U. S. 156 (1981). The question
there was whether the federal-employment provisions of
the ADEA, 29 U. S. C. §633a, provided a jury-trial right
for claims against the Federal Government. Nakshian,
453 U. S., at 157. In concluding that it did not, the Court
noted that the portion of the ADEA that prohibited age
discrimination by private, state, and local employers,
§626, expressly provided for a jury trial, whereas the
federal-sector provisions said nothing about such a right.
Id., at 162–163, 168. So, too, here. Congress has in explic-
it terms altered the standard of causation for one class of
claims but not another, despite the obvious opportunity to
do so in the 1991 Act.
18 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
B
The proper interpretation and implementation of
§2000e–3(a) and its causation standard have central im-
portance to the fair and responsible allocation of resources
in the judicial and litigation systems. This is of particular
significance because claims of retaliation are being made
with ever-increasing frequency. The number of these
claims filed with the Equal Employment Opportunity
Commission (EEOC) has nearly doubled in the past 15
years—from just over 16,000 in 1997 to over 31,000
in 2012. EEOC, Charge Statistics FY 1997 Through
FY 2012, http://www.eeoc.gov/eeoc/statistics/enforcement/
charges.cfm (as visited June 20, 2013, and available in
Clerk of Court’s case file). Indeed, the number of retalia-
tion claims filed with the EEOC has now outstripped those
for every type of status-based discrimination except race.
See ibid.
In addition lessening the causation standard could also
contribute to the filing of frivolous claims, which would
siphon resources from efforts by employer, administrative
agencies, and courts to combat workplace harassment.
Consider in this regard the case of an employee who
knows that he or she is about to be fired for poor perform-
ance, given a lower pay grade, or even just transferred to
a different assignment or location. To forestall that lawful
action, he or she might be tempted to make an unfounded
charge of racial, sexual, or religious discrimination; then,
when the unrelated employment action comes, the em-
ployee could allege that it is retaliation. If respondent
were to prevail in his argument here, that claim could be
established by a lessened causation standard, all in order
to prevent the undesired change in employment circum-
stances. Even if the employer could escape judgment after
trial, the lessened causation standard would make it far
more difficult to dismiss dubious claims at the summary
judgment stage. Cf. Vance v. Ball State Univ., post, at 9–
Cite as: 570 U. S. ____ (2013) 19
Opinion of the Court
11. It would be inconsistent with the structure and opera-
tion of Title VII to so raise the costs, both financial and
reputational, on an employer whose actions were not in
fact the result of any discriminatory or retaliatory intent.
See Brief for National School Boards Association as Ami­
cus Curiae 11–22. Yet there would be a significant risk of
that consequence if respondent’s position were adopted
here.
The facts of this case also demonstrate the legal and
factual distinctions between status-based and retaliation
claims, as well as the importance of the correct standard of
proof. Respondent raised both claims in the District
Court. The alleged wrongdoer differed in each: In re-
spondent’s status-based discrimination claim, it was his
indirect supervisor, Dr. Levine. In his retaliation claim, it
was the Chair of Internal Medicine, Dr. Fitz. The proof
required for each claim differed, too. For the status-based
claim, respondent was required to show instances of racial
slurs, disparate treatment, and other indications of
nationality-driven animus by Dr. Levine. Respondent’s
retaliation claim, by contrast, relied on the theory that Dr.
Fitz was committed to exonerating Dr. Levine and wished
to punish respondent for besmirching her reputation.
Separately instructed on each type of claim, the jury re-
turned a separate verdict for each, albeit with a single
damages award. And the Court of Appeals treated each
claim separately, too, finding insufficient evidence on the
claim of status-based discrimination.
If it were proper to apply the motivating-factor standard
to respondent’s retaliation claim, the University might
well be subject to liability on account of Dr. Fitz’s alleged
desire to exonerate Dr. Levine, even if it could also be
shown that the terms of the affiliation agreement pre-
cluded the Hospital’s hiring of respondent and that the
University would have sought to prevent respondent’s
hiring in order to honor that agreement in any event. That
20 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
result would be inconsistent with the both the text and
purpose of Title VII.
In sum, Title VII defines the term “unlawful employ-
ment practice” as discrimination on the basis of any of
seven prohibited criteria: race, color, religion, sex, national
origin, opposition to employment discrimination, and
submitting or supporting a complaint about employment
discrimination. The text of §2000e–2(m) mentions just the
first five of these factors, the status-based ones; and it
omits the final two, which deal with retaliation. When it
added §2000e–2(m) to Title VII in 1991, Congress inserted
it within the section of the statute that deals only with
those same five criteria, not the section that deals with
retaliation claims or one of the sections that apply to all
claims of unlawful employment practices. And while the
Court has inferred a congressional intent to prohibit retal-
iation when confronted with broadly worded antidiscrimi-
nation statutes, Title VII’s detailed structure makes that
inference inappropriate here. Based on these textual and
structural indications, the Court now concludes as follows:
Title VII retaliation claims must be proved according to
traditional principles of but-for causation, not the lessened
causation test stated in §2000e–2(m). This requires proof
that the unlawful retaliation would not have occurred in
the absence of the alleged wrongful action or actions of the
employer.
IV
Respondent and the Government also argue that apply-
ing the motivating-factor provision’s lessened causation
standard to retaliation claims would be consistent with
longstanding agency views, contained in a guidance man-
ual published by the EEOC. It urges that those views are
entitled to deference under this Court’s decision in Skid­
more v. Swift & Co., 323 U. S. 134 (1944). See National
Railroad Passenger Corporation v. Morgan, 536 U. S. 101,
Cite as: 570 U. S. ____ (2013) 21
Opinion of the Court
110, n. 6 (2002). The weight of deference afforded to
agency interpretations under Skidmore depends upon “the
thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later pro-
nouncements, and all those factors which give it power to
persuade.” 323 U. S., at 140; see Vance, post, at 9, n. 4.
According to the manual in question, the causation
element of a retaliation claim is satisfied if “there is credi-
ble direct evidence that retaliation was a motive for the
challenged action,” regardless of whether there is also
“[e]vidence as to [a] legitimate motive.” 2 EEOC Compli-
ance Manual §8–II(E)(1), pp. 614:0007–614:0008 (Mar.
2003). After noting a division of authority as to whether
motivating-factor or but-for causation should apply to
retaliation claims, the manual offers two rationales in
support of adopting the former standard. The first is that
“[c]ourts have long held that the evidentiary framework
for proving [status-based] discrimination . . . also applies
to claims of discrimination based on retaliation.” Id., at
614:0008, n. 45. Second, the manual states that “an inter-
pretation . . . that permits proven retaliation to go unpun-
ished undermines the purpose of the anti-retaliation
provisions of maintaining unfettered access to the statutory
remedial mechanism.” Ibid.
These explanations lack the persuasive force that is a
necessary precondition to deference under Skidmore. See
323 U. S., at 140; Vance, post, at 9, n. 4. As to the first
rationale, while the settled judicial construction of a par-
ticular statute is of course relevant in ascertaining statu-
tory meaning, see Lorillard v. Pons, 434 U. S. 575, 580–
581 (1978), the manual’s discussion fails to address the
particular interplay among the status-based discrimina-
tion provision (§2000e–2(a)), the antiretaliation provision
(§2000e–3(a)), and the motivating-factor provision
(§2000e–2(m)). Other federal antidiscrimination statutes
do not have the structure of statutory subsections that
22 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
Opinion of the Court
control the outcome at issue here. The manual’s failure to
address the specific provisions of this statutory scheme,
coupled with the generic nature of its discussion of the
causation standards for status-based discrimination and
retaliation claims, call the manual’s conclusions into
serious question. See Kentucky Retirement Systems v.
EEOC, 554 U. S. 135, 149–150 (2008).
The manual’s second argument is unpersuasive, too; for
its reasoning is circular. It asserts the lessened causation
standard is necessary in order to prevent “proven retalia-
tion” from “go[ing] unpunished.” 2 EEOC Compliance
Manual §8–II(E)(1), at 614:0008, n. 45. Yet this assumes
the answer to the central question at issue here, which is
what causal relationship must be shown in order to prove
retaliation.
Respondent’s final argument, in which he is not joined
by the United States, is that even if §2000e–2(m) does not
control the outcome in this case, the standard applied by
Price Waterhouse should control instead. That assertion is
incorrect. First, this position is foreclosed by the 1991
Act’s amendments to Title VII. As noted above, Price
Waterhouse adopted a complex burden-shifting frame-
work. Congress displaced this framework by enacting
§2000e–2(m) (which adopts the motivating-factor standard
for status-based discrimination claims) and §2000e–
5(g)(2)(B) (which replaces employers’ total defense with a
remedial limitation). See Gross, 557 U. S., at 175, n. 2,
177, n. 3, 178, n. 5. Given the careful balance of lessened
causation and reduced remedies Congress struck in the
1991 Act, there is no reason to think that the different
balance articulated by Price Waterhouse somehow sur-
vived that legislation’s passage. Second, even if this ar-
gument were still available, it would be inconsistent with
the Gross Court’s reading (and the plain textual meaning)
of the word “because” as it appears in both §623(a) and
§2000e–3(a). See Gross, supra, at 176–177. For these
Cite as: 570 U. S. ____ (2013) 23
Opinion of the Court
reasons, the rule of Price Waterhouse is not controlling
here.
V
The text, structure, and history of Title VII demonstrate
that a plaintiff making a retaliation claim under §2000e–
3(a) must establish that his or her protected activity was
a but-for cause of the alleged adverse action by the em-
ployer. The University claims that a fair application of this
standard, which is more demanding than the motivating-
factor standard adopted by the Court of Appeals, entitles
it to judgment as a matter of law. It asks the Court to so
hold. That question, however, is better suited to resolu-
tion by courts closer to the facts of this case. The judg-
ment of the Court of Appeals for the Fifth Circuit is vacated,
and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–484
_________________
UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL
CENTER, PETITIONER v. NAIEL NASSAR
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2013]
JUSTICE GINSBURG, with whom JUSTICE BREYER, JUS-
TICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
Title VII of the Civil Rights Act of 1964, 42 U. S. C.
§2000e et seq., makes it an “unlawful employment prac­
tice” to “discriminate against any individual . . . because of
such individual’s race, color, religion, sex, or national
origin.” §2000e–2(a) (emphasis added). Backing up that
core provision, Title VII also makes it an “unlawful em­
ployment practice” to discriminate against any individual
“because” the individual has complained of, opposed, or
participated in a proceeding about, prohibited discrimina­
tion. §2000e–3(a) (emphasis added). This form of discrim­
ination is commonly called “retaliation,” although Title VII
itself does not use that term. The Court has recognized
that effective protection against retaliation, the office of
§2000e–3(a), is essential to securing “a workplace where
individuals are not discriminated against because of their
racial, ethnic, religious, or gender-based status.” Burling­
ton N. & S. F. R. Co. v. White, 548 U. S. 53, 63 (2006)
(Burlington Northern). That is so because “fear of retalia­
tion is the leading reason why people stay silent” about
the discrimination they have encountered or observed.
Crawford v. Metropolitan Government of Nashville and
Davidson Cty., 555 U. S. 271, 279 (2009) (internal quota­
tion marks and brackets omitted).
2 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
GINSBURG, J., dissenting
Similarly worded, the ban on discrimination and the ban
on retaliation against a discrimination complainant have
traveled together: Title VII plaintiffs often raise the two pro­
visions in tandem. Today’s decision, however, drives a
wedge between the twin safeguards in so-called “mixed­
motive” cases. To establish discrimination, all agree, the
complaining party need show only that race, color, reli­
gion, sex, or national origin was “a motivating factor” in
an employer’s adverse action; an employer’s proof that
“other factors also motivated the [action]” will not defeat
the discrimination claim. §2000e–2(m). But a retaliation
claim, the Court insists, must meet a stricter standard:
The claim will fail unless the complainant shows “but-for”
causation, i.e., that the employer would not have taken the
adverse employment action but for a design to retaliate.
In so reining in retaliation claims, the Court misappre­
hends what our decisions teach: Retaliation for complain­
ing about discrimination is tightly bonded to the core pro­
hibition and cannot be disassociated from it. Indeed,
this Court has explained again and again that “retaliation
in response to a complaint about [proscribed] discrimina­
tion is discrimination” on the basis of the characteristic
Congress sought to immunize against adverse employment
action. Jackson v. Birmingham Bd. of Ed., 544 U. S. 167,
179, n. 3 (2005) (emphasis added; internal quotation
marks omitted).
The Court shows little regard for the trial judges who
will be obliged to charge discrete causation standards
when a claim of discrimination “because of,” e.g., race is
coupled with a claim of discrimination “because” the indi­
vidual has complained of race discrimination. And jurors
will puzzle over the rhyme or reason for the dual stand­
ards. Of graver concern, the Court has seized on a provi­
sion, §2000e–2(m), adopted by Congress as part of an
endeavor to strengthen Title VII, and turned it into a
measure reducing the force of the ban on retaliation.
Cite as: 570 U. S. ____ (2013) 3
GINSBURG, J., dissenting
I
Dr. Naiel Nassar is of Middle Eastern descent. A spe­
cialist in the treatment of HIV/AIDS, Nassar was a faculty
member of the University of Texas Southwestern Medical
Center (UTSW) from 1995 until 2006, save for a period
during which he left his employment to continue his edu­
cation. UTSW is affiliated with Parkland Hospital and,
like other faculty members at the University, Nassar also
worked as a physician at the Hospital. Beginning in 2001,
Nassar served as Associate Medical Director of the Hospi­
tal’s Amelia Court Clinic.
Until 2004, Dr. Phillip Keiser, Medical Director of the
Clinic, was Nassar’s principal supervisor. In that year,
UTSW hired Dr. Beth Levine to oversee the Clinic and to
supervise Keiser. Before Levine commenced her employ­
ment at UTSW, she interviewed her potential subordi­
nates. Meeting with other Clinic doctors for only 15 to 20
minutes, Levine spent an hour and a half with Nassar,
engaging in a detailed review of his resume and reading
from a list of prepared questions. Record 2926–2928.
Once Levine came on board, she expressed concern
to Keiser about Nassar’s productivity and questioned his
work ethic. Id., at 2361–2362. According to Keiser, Le-
vine “never seemed to [be] satisf[ied]” with his assurances
that Nassar was in fact working harder than other physi­
cians. Id., at 2362. Disconcerted by Levine’s scrutiny,
Nassar several times complained about it to Levine’s
supervisor, Dr. Gregory Fitz, Chair of Internal Medicine.
App. to Pet. for Cert. 4.
In 2005, Levine opposed hiring another physician who,
like Nassar, was of Middle Eastern descent. In Keiser’s
presence, Levine remarked that “Middle Easterners are
lazy.” Id., at 3. When that physician was hired by Park­
land, Levine said, again in Keiser’s presence, that the
Hospital had “hired another one.” Ibid. See also Record
2399–2400. Keiser presented to Levine objective data
4 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
GINSBURG, J., dissenting
demonstrating Nassar’s high productivity. Levine then
began criticizing Nassar’s billing practices. Her criticism
did not take into account that Nassar’s salary was funded
by a federal grant that precluded billing for most of his
services. App. to Pet. for Cert. 3.
Because of Levine’s hostility, Nassar sought a way to
continue working at the Clinic without falling under her
supervision. To that end, Nassar engaged in discussions
with the Hospital about dropping his affiliation with
UTSW and retaining his post at Parkland. Although he
was initially told that an affiliation agreement between
UTSW and Parkland obliged Parkland to fill its staff
physician posts with UTSW faculty, talks with the Hos­
pital continued. Eventually, Parkland verbally offered
Nassar a position as a staff physician. See App. 67–71,
214–216, 326–330.
In July 2006, Nassar resigned from his position at
UTSW. “The primary reason [for his] resignation,” Nassar
wrote in a letter to Fitz, “[was] the continuing harassment
and discrimination . . . by . . . Dr. Beth Levine.” App. to
Pet. for Cert. 5 (internal quotation marks omitted). Ac­
cording to Keiser, Nassar’s letter shocked Fitz, who told
Keiser that, because Levine had been “publicly humili-
ated,” she should be “publicly exonerated.” App. 41. Fitz’s
opposition to Parkland’s hiring Nassar prompted the
Hospital to withdraw the offer to engage him. App. to Pet.
for Cert. 5–6.
After accepting a position at a smaller HIV/AIDS clinic
in Fresno, California, Nassar filed a complaint with the
Equal Employment Opportunity Commission (EEOC).
The agency found “credibl[e] testimonial evidence,” that
UTSW had retaliated against Nassar for his allegations of
discrimination by Levine. Brief for Respondent 8 (citing
Pl. Trial Exh. 78). Nassar then filed suit in District Court
alleging that UTSW had discriminated against him, in
violation of Title VII, on the basis of his race, religion, and
Cite as: 570 U. S. ____ (2013) 5
GINSBURG, J., dissenting
national origin, see §2000e–2(a), and had constructively
discharged him. App. to Pet. for Cert. 6; Complaint ¶23.
He further alleged that UTSW had retaliated against him
for complaining about Levine’s behavior. App. to Pet. for
Cert. 6.
On the retaliation claim, the District Court instructed
the jury that Nassar “[did] not have to prove that retalia­
tion was [UTSW’s] only motive, but he [had to] prove that
[UTSW] acted at least in part to retaliate.” Id., at 47. The
jury found UTSW liable for both constructive discharge
and retaliation. At the remedial phase, the judge charged
the jury not to award damages for “actions which [UTSW]
prove[d] by a preponderance of the evidence . . . it would
have taken even if it had not considered . . . Nassar’s
protected activity.” Id., at 42–43. Finding that UTSW
had not met its proof burden, the jury awarded Nassar
$438,167.66 in backpay and $3,187,500 in compensatory
damages. Id., at 43–44.1
The Court of Appeals for the Fifth Circuit affirmed in
part.2 Responding to UTSW’s argument that the District
Court erred in instructing the jury on a mixed-motive
theory of retaliation, the Fifth Circuit held that the in­
struction conformed to Circuit precedent. 674 F. 3d 448,
454, n. 16 (2012) (citing Smith v. Xerox Corp., 602 F. 3d
320, 330 (2010)).3
——————
1 The District Court reduced compensatory damages to $300,000, the
statutory cap under Title VII. See 42 U. S. C. §1981a(b)(3)(D).
2 The Court of Appeals found the evidence insufficient to support
the claim of constructive discharge and reversed the District Court’s
judgment to that extent. See App. to Pet. for Cert. 8–10. That ruling is
not contested here.
3 The Fifth Circuit has since reversed course in an unpublished opin­
ion, concluding that §2000e–2(m)’s motivating-factor prescription does
not apply to retaliation claims. See Carter v. Luminant Power Servs.
Co., No. 12–10642, 2013 WL 1337365 (Apr. 3, 2013).
6 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
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GINSBURG, J., dissenting
II
This Court has long acknowledged the symbiotic rela­
tionship between proscriptions on discrimination and pro-
scriptions on retaliation. Antidiscrimination provisions,
the Court has reasoned, endeavor to create a workplace
where individuals are not treated differently on account
of race, ethnicity, religion, or sex. See Burlington
Northern, 548 U. S., at 63. Antiretaliation provisions
“see[k] to secure that primary objective by preventing an
employer from interfering . . . with an employee’s efforts to
secure or advance enforcement of [antidiscrimination]
guarantees.” Ibid. As the Court has comprehended, “Title
VII depends for its enforcement upon the cooperation of
employees who are willing to file complaints and act as
witnesses.” Id., at 67. “ ‘[E]ffective enforcement,’ ” there­
fore, can “ ‘only be expected if employees . . . [feel] free to
approach officials with their grievances.’ ” Ibid. (quoting
Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288,
292 (1960)). See also Crawford, 555 U. S., at 279.
Adverting to the close connection between discrimina­
tion and retaliation for complaining about discrimination,
this Court has held, in a line of decisions unbroken until
today, that a ban on discrimination encompasses retalia­
tion. In Sullivan v. Little Hunting Park, Inc., 396 U. S.
229, 237 (1969), the Court determined that 42 U. S. C.
§1982, which provides that “[a]ll citizens of the United
States shall have the same right . . . as is enjoyed by white
citizens . . . to inherit, purchase, lease, sell, hold, and
convey real and personal property,” protected a white man
who suffered retaliation after complaining of discrimina­
tion against his black tenant. Jackson v. Birmingham
Board of Education elaborated on that holding in the
context of sex discrimination. “Retaliation against a per­
son because [he] has complained of sex discrimination,”
the Court found it inescapably evident, “is another form of
intentional sex discrimination.” 544 U. S., at 173. As the
Cite as: 570 U. S. ____ (2013) 7
GINSBURG, J., dissenting
Court explained:
“Retaliation is, by definition, an intentional act. It
is a form of ‘discrimination’ because the complainant is
being subject to differential treatment. Moreover, re­
taliation is discrimination ‘on the basis of sex’ because
it is an intentional response to the nature of the com­
plaint: an allegation of sex discrimination.” Id., at
173–174 (citations omitted).
Jackson interpreted Title IX of the Educational
Amendments of 1972, 20 U. S. C. §1681(a). Noting that
the legislation followed three years after Sullivan, the
Court found it “not only appropriate but also realistic to
presume that Congress was thoroughly familiar with
Sullivan and . . . expected its enactment of Title IX to be
interpreted in conformity with it.” 544 U. S., at 176 (in­
ternal quotation marks and alterations omitted).
Gómez-Pérez v. Potter, 553 U. S. 474 (2008), was similarly
reasoned. The Court there held that the federal-sector
provision of the Age Discrimination in Employment Act of
1967 (ADEA), 29 U. S. C. §633a(a), barring discrimination
“based on age,” also proscribes retaliation. 553 U. S., at
479–491. “What Jackson said about the relationship
between Sullivan and the enactment of Title IX,” the
Court observed, “can be said as well about the relation-
ship between Sullivan and the enactment of the ADEA’s
federal-sector provision.” Id., at 485. See also CBOCS West,
Inc. v. Humphries, 553 U. S. 442, 447–457 (2008) (retalia­
tion for race discrimination constitutes discrimination
based on race under 42 U. S. C. §1981). There is no sound
reason in this case to stray from the decisions in Sullivan,
Jackson, Gómez-Pérez, and CBOCS West.
III
A
The Title VII provision key here, §2000e–2(m), states
that “an unlawful employment practice is established
8 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
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GINSBURG, J., dissenting
when the complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also
motivated the practice.” Section 2000e–2(m) was enacted
as part of the Civil Rights Act of 1991, which amended
Title VII, along with other federal antidiscrimination
statutes. See 105 Stat. 1071. The amendments were
intended to provide “additional protections against unlaw­
ful discrimination in employment,” id., §2(3), and to “re­
spon[d] to a number of . . . decisions by [this Court] that
sharply cut back on the scope and effectiveness” of antidis­
crimination laws, H. R. Rep. No. 102–40, pt. II, pp. 2–4
(1991) (hereinafter House Report Part II) (citing, inter
alia, Patterson v. McLean Credit Union, 491 U. S. 164(1989); Martin v. Wilks, 490 U. S. 755 (1989); Lorance v.
AT&T Technologies, Inc., 490 U. S. 900 (1989)).
Among the decisions found inadequately protective was
Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). A
plurality of the Court in that case held that the words
“because of ” in §2000e–2(a) encompass claims challenging
an employment decision attributable to “mixed motives,”
i.e., one motivated by both legitimate and illegitimate
factors. See id., at 240–242.4 A Title VII plaintiff, the
plurality concluded, need show only that a prohibited
factor contributed to the employment decision—not that it
was the but-for or sole cause. Id., at 240–244. But see id.,
at 281–282 (KENNEDY, J., dissenting). An employer would
not be liable, however, if it could show by a preponderance
of the evidence that it would have taken the same action
absent the illegitimate motive. Id., at 244–245.
——————
4 Justices White and O’Connor separately concurred and would have
required the Title VII plaintiff to show that protected characteristics
constituted a substantial motivating factor in the adverse employment
decision. See Price Waterhouse v. Hopkins, 490 U. S. 228, 259 (1989)
(White, J., concurring in judgment); id., at 265 (O’Connor, J., concur­
ring in judgment).
Cite as: 570 U. S. ____ (2013) 9
GINSBURG, J., dissenting
Congress endorsed the plurality’s conclusion that, to be
actionable under Title VII, discrimination must be a moti­
vating factor in, but need not be the but-for cause of, an
adverse employment action. See House Report Part II, at
18. Congress disagreed with the Court, however, insofar
as the Price Waterhouse decision allowed an employer to
escape liability by showing that the same action would
have been taken regardless of improper motive. House
Report Part II, at 18. See also H. R. Rep. No. 102–40,
pt. I, pp. 45–48 (1991) (hereinafter House Report Part I).
“If Title VII’s ban on discrimination in employment is to
be meaningful,” the House Report explained, “victims of
intentional discrimination must be able to obtain relief,
and perpetrators of discrimination must be held liable for
their actions.” House Report Part II, at 18.
Superseding Price Waterhouse in part, Congress sought
to “restore” the rule of decision followed by several Cir­
cuits that any discrimination “actually shown to play a
role in a contested employment decision may be the sub­
ject of liability.” House Report Part II, at 18. See also
House Report Part I, at 48. To that end, Congress enacted
§2000e–2(m) and §2000e–5(g)(2)(B). The latter provides
that an employer’s proof that an adverse employment
action would have been taken in any event does not shield
the employer from liability; such proof, however, limits the
plaintiff ’s remedies to declaratory or injunctive relief,
attorney’s fees, and costs.
Critically, the rule Congress intended to “restore” was
not limited to substantive discrimination. As the House
Report explained, “the Committee endors[ed] . . . the
decisional law” in Bibbs v. Block, 778 F. 2d 1318 (CA8
1985) (en banc), which held that a violation of Title VII
is established when the trier of fact determines that “an
unlawful motive played some part in the employment
decision or decisional process.” Id., at 1323; see House
Report Part I, at 48. Prior to the 1991 Civil Rights Act,
10 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
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GINSBURG, J., dissenting
Bibbs had been applied to retaliation claims. See, e.g.,
Johnson v. Legal Servs. of Arkansas, Inc., 813 F. 2d 893,
900 (CA8 1987) (“Should the court find that retaliation
played some invidious part in the [plaintiff ’s] termination,
a violation of Title VII will be established under Bibbs.”).
See also EEOC v. General Lines, Inc., 865 F. 2d 1555, 1560
(CA10 1989).
B
There is scant reason to think that, despite Congress’
aim to “restore and strengthen . . . laws that ban discrimi­
nation in employment,” House Report Part II, at 2, Con­
gress meant to exclude retaliation claims from the newly
enacted “motivating factor” provision. Section 2000e–2(m)
provides that an “unlawful employment practice is estab­
lished” when the plaintiff shows that a protected charac­
teristic was a factor driving “any employment practice.”
Title VII, in §2000e–3(a), explicitly denominates retalia­
tion, like status-based discrimination, an “unlawful em­
ployment practice.” Because “any employment prac-
tice” necessarily encompasses practices prohibited
under §2000e–3(a), §2000e–2(m), by its plain terms, covers
retaliation.
Notably, when it enacted §2000e–2(m), Congress did
not tie the new provision specifically to §§2000e–2(a)–(d),
which proscribe discrimination “because of ” race, color,
religion, gender, or national origin. Rather, Congress
added an entirely new provision to codify the causation
standard, one encompassing “any employment practice.”
§2000e–2(m).
Also telling, §2000e–2(m) is not limited to situations in
which the complainant’s race, color, religion, sex, or na­
tional origin motivates the employer’s action. In contrast,
Title VII’s substantive antidiscrimination provisions refer
to the protected characteristics of the complaining party.
See §§2000e–2(a)(1)–(2), (c)(2) (referring to “such individu­
Cite as: 570 U. S. ____ (2013) 11
GINSBURG, J., dissenting
al’s” protected characteristics); §§2000e–2(b), (c)(1), (d) (re­
ferring to “his race, color, religion, sex, or national origin”).
Congress thus knew how to limit Title VII’s coverage
to victims of status-based discrimination when it was
so minded. It chose, instead, to bring within §2000e–
2(m) “any employment practice.” To cut out retaliation
from §2000e–2(m)’s scope, one must be blind to that
choice. Cf. Jackson, 544 U. S., at 179, n. 3 (omission of
reference to the complaining party’s sex in Title IX sup­
ports the conclusion that the statute protects a male plain­
tiff from retaliation in response to complaints about sex
discrimination against women).
C
From the inception of §2000e–2(m), the agency entrusted
with interpretation of Title VII and superintendence of
the Act’s administration, the EEOC, see §2000e–5, has
understood the provision to cover retaliation claims.
Shortly after Congress amended Title VII to include the
motivating-factor provision, the EEOC issued guidance
advising that, “[a]lthough [§2000e–2(m)] does not specify
retaliation as a basis for finding liability whenever it is a
motivating factor for an action, neither does it suggest
any basis for deviating from the Commission’s long­
standing rule that it will find liability . . . whenever
retaliation plays any role in an employment decision.”
EEOC, Revised Enforcement Guidance on Recent Devel­
opments in Disparate Treatment Theory, p. 20, n. 14 (July
14, 1992) (hereinafter EEOC Guidance), available at
http://www.eeoc.gov/policy/docs/disparat.html (as visited
June 21, 2013, and in Clerk of Court’s case file). As the
EEOC’s initial guidance explained, “if retaliation were to
go unremedied, it would have a chilling effect upon the
willingness of individuals to speak out against employ­
ment discrimination.” Ibid.
In its compliance manual, the EEOC elaborated on its
12 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
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conclusion that “[§2000e–2(m)] applies to retaliation.” 2
EEOC Compliance Manual §8–II(E)(1), p. 614:0008, n. 45
(May 20, 1998) (hereinafter EEOC Compliance Manual).
That reading, the agency observed, tracked the view,
widely held by courts, “that the evidentiary framework for
proving employment discrimination based on race, sex, or
other protected class status also applies to claims of dis­
crimination based on retaliation.” Ibid. “[A]n interpreta­
tion of [§2000e–2(m)] that permit[ted] proven retaliation
to go unpunished,” the EEOC noted, would “undermin[e]
the purpose of the anti-retaliation provisions of maintain­
ing unfettered access to the statutory remedial mecha­
nism.” Ibid.
The position set out in the EEOC’s guidance and com­
pliance manual merits respect. See Skidmore v. Swift &
Co., 323 U. S. 134, 140 (1944); Federal Express Corp. v.
Holowecki, 552 U. S. 389, 399 (2008) (“[EEOC’s] policy
statements, embodied in its compliance manual and inter­
nal directives . . . reflect a body of experience and informed
judgment. . . . As such, they are entitled to a measure of
respect under the less deferential Skidmore standard.”
(internal quotation marks omitted)). If the breadth of
§2000e–2(m) can be deemed ambiguous (although I believe
its meaning is plain), the provision should be construed to
accord with the EEOC’s well-reasoned and longstanding
guidance.
IV
The Court draws the opposite conclusion, ruling that
retaliation falls outside the scope of §2000e–2(m). In so
holding, the Court ascribes to Congress the unlikely pur­
pose of separating retaliation claims from discrimination
claims, thereby undermining the Legislature’s effort to
fortify the protections of Title VII. None of the reasons the
Court offers in support of its restrictive interpretation of
§2000e–2(m) survives inspection.
Cite as: 570 U. S. ____ (2013) 13
GINSBURG, J., dissenting
A
The Court first asserts that reading §2000e–2(m) to
encompass claims for retaliation “is inconsistent with the
provision’s plain language.” Ante, at 12. The Court
acknowledges, however, that “the text of the motivating­
factor provision . . . begins by referring to unlawful em­
ployment practices,” a term that undeniably includes
retaliation. Ibid. (internal quotation marks omitted).
Nevermind that, the Court continues, for §2000e–2(m)
goes on to reference as “motivating factor[s]” only “race,
color, religion, sex, or national origin.” The Court thus
sees retaliation as a protected activity entirely discrete
from status-based discrimination. Ibid.
This vision of retaliation as a separate concept runs up
against precedent. See supra, at 6–7. Until today, the
Court has been clear eyed on just what retaliation is: a
manifestation of status-based discrimination. As Jackson
explained in the context of sex discrimination, “retalia­
tion is discrimination ‘on the basis of sex’ because it is
an intentional response to the nature of the complaint: an
allegation of sex discrimination.” 544 U. S., at 174.
The Court does not take issue with Jackson’s insight.
Instead, it distinguishes Jackson and like cases on the
ground that they concerned laws in which “Congress’
treatment of the subject of prohibited discrimination was
both broad and brief.” Ante, at 15. Title VII, by contrast,
“is a detailed statutory scheme,” that “enumerates specific
unlawful employment practices,” “defines key terms,” and
“exempts certain types of employers.” Ante, at 16. Accord­
ingly, the Court says, “it would be improper to indulge
[the] suggestion that Congress meant to incorporate [in
Title VII] the default rules that apply only when Congress
writes a broad and undifferentiated statute.” Ibid.It is strange logic indeed to conclude that when Con­
gress homed in on retaliation and codified the proscrip­
tion, as it did in Title VII, Congress meant protection
14 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
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GINSBURG, J., dissenting
against that unlawful employment practice to have less
force than the protection available when the statute does
not mention retaliation. It is hardly surprising, then, that
our jurisprudence does not support the Court’s conclusion.
In Gómez-Pérez, the Court construed the federal-sector
provision of the ADEA, which proscribes “discrimination
based on age,” 29 U. S. C. §633a(a), to bar retaliation. The
Court did so mindful that another part of the Act, the
provision applicable to private-sector employees, explicitly
proscribes retaliation and, moreover, “set[s] out a specific
list of forbidden employer practices.” Gómez-Pérez, 553
U. S., at 486–487 (citing 29 U. S. C. §§623(a) and (d)).
The Court suggests that “the la[w] at issue in . . .
Gómez-Pérez [was a] broad, general ba[r] on discrimina­
tion.” Ante, at 15. But, as our opinion in that case ob­
serves, some of the ADEA’s provisions are brief, broad,
and general, while others are extensive, specific, and
detailed. 553 U. S., at 487. So too of Title VII. See ibid.
(“The ADEA federal-sector provision was patterned di­
rectly after Title VII’s federal-sector discrimination ban . . .
[which] contains a broad prohibition of ‘discrimination,’
rather than a list of specific prohibited practices.” (some
internal quotation marks omitted)). It makes little sense
to apply a different mode of analysis to Title VII’s §2000e–
2(m) and the ADEA’s §633a(a), both brief statements on
discrimination in the context of larger statutory schemes.5
——————
5 The Court obscures the inconsistency between today’s opinion and
Gómez-Pérez by comparing §633a to all of Title VII. See ante, at 16
(“Unlike Title IX, §1981, §1982, and the federal-sector provisions of the
ADEA, Title VII is a detailed statutory scheme.”). That comparison is
inapt. Like Title VII, the ADEA is a “detailed statutory scheme.” Ibid.
Compare ibid. (citing Title VII provisions that proscribe status-based
discrimination by employers, employment agencies, labor organiza­
tions, and training programs; bar retaliation; prohibit advertising a
preference for certain protected characteristics; define terms; exempt
certain employers; and create an agency with rulemaking and enforce­
ment authority), with 29 U. S. C. §§623(a)–(e) (proscribing age discrim­
Cite as: 570 U. S. ____ (2013) 15
GINSBURG, J., dissenting
The Court’s reliance on §109(b) of the Civil Rights Act of
1991, 105 Stat. 1077,6 and the Americans with Disabilities
Act of 1990 (ADA), 104 Stat. 327, is similarly unavailing.
According to the Court, Congress’ explicit reference to
§2000e–3(a) in §109(b) “reinforc[es] the conclusion that
Congress acted deliberately when it omitted retaliation
claims from §2000e–2(m).” Ante, at 13. The same is true
of the ADA, the Court says, as “Congress provided not
just a general prohibition on discrimination ‘because of
[an individual’s] disability,’ but also seven paragraphs of
detailed description of the practices that would constitute
the prohibited discrimination . . . [a]nd . . . an express
antiretaliation provision.” Ante, at 17.
This argument is underwhelming. Yes, Congress has
sometimes addressed retaliation explicitly in antidiscrim­
ination statutes. When it does so, there is no occasion for
interpretation. But when Congress simply targets dis­
crimination “because of ” protected characteristics, or, as
in §2000e–2(m), refers to employment practices motivated
by race, color, religion, sex, or national origin, how should
courts comprehend those phrases? They should read them
informed by this Court’s consistent holdings that such
phrases draw in retaliation, for, in truth, retaliation is a
——————
ination by employers, employment agencies, and labor unions; barring
retaliation; prohibiting advertising a preference for employees of a
particular age), §628 (granting rulemaking authority to the EEOC), and
§630 (defining terms). Thus, §633a is just like §2000e–2(m) in the
relevant respect: both are single provisions comprised within a detailed
scheme.
6 Now codified at 42 U. S. C. §2000e–1(b), §109(b) provides:
“It shall not be unlawful under §2000e–2 or 2000e–3 . . . for an em­
ployer . . . to take any action otherwise prohibited by such section, with
respect to an employee in a workplace in a foreign country if compliance
with such section would cause such employer . . . to violate the law of
the foreign country in which such workplace is located.” The provision
was framed to accord with this Court’s decision in EEOC v. Arabian
American Oil Co., 499 U. S. 244 (1991).
16 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
GINSBURG, J., dissenting
“form of intentional [status-based] discrimination.” See
Jackson, 544 U. S., at 173, described supra, at 6–7. That
is why the Court can point to no prior instance in which an
antidiscrimination law was found not to cover retaliation.
The Court’s volte-face is particularly imprudent in the
context of §2000e–2(m), a provision added as part of Con­
gress’ effort to toughen protections against workplace
discrimination.
B
The Court also disassociates retaliation from status­
based discrimination by stressing that the bar on the
latter appears in §2000e–2, while the proscription of retal­
iation appears in a separate provision, §2000e–3. Section
2000e–2, the Court asserts, “contains Title VII’s ban on
status-based discrimination . . . and says nothing about
retaliation.” Ante, at 13. Retaliation, the Court therefore
concludes, should not be read into §2000e–2(m). Ante, at
13–14.
The Court’s reasoning rests on a false premise. Section
2000e–2 does not deal exclusively with discrimination
based on protected characteristics. The provisions stated
after §§2000e–2(a)–(d) deal with a variety of matters,
some of them unquestionably covering retaliation. For
example, §2000e–2(n), enacted in tandem with and located
immediately after §2000e–2(m), limits opportunities to
collaterally attack employment practices installed to im­
plement a consent judgment. Section 2000e–2(n) applies
beyond the substantive antidiscrimination provisions in
§2000e–2; indeed, it applies beyond Title VII to encom­
pass claims “under the Constitution or [other] Federal
civil rights laws.” §2000e–2(n)(1)(A). Thus, if an employee
sues for retaliatory discharge in violation of §2000e–3(a),
and a consent judgment orders reinstatement, any person
adversely affected by that judgment (e.g., an employee
who loses seniority as a result) would generally be barred
Cite as: 570 U. S. ____ (2013) 17
GINSBURG, J., dissenting
from attacking the judgment if she was given actual no-
tice of the proposed order and a reasonable opportunity to
present objections. That Congress placed the consent­
judgment provision in §2000e–2 and not in §2000e–3 is of
no moment. As the text of the provision plainly conveys,
§2000e–2(n) would reach consent judgments settling
complaints about retaliation, just as it would cover con­
sent judgments settling complaints about status-based
discrimination.
Section 2000e–2(g) is similarly illustrative. Under that
provision, “it shall not be an unlawful employment prac­
tice for an employer . . . to discharge [an] individual” if she
fails to fulfill any requirement imposed in the interest of
national security. Because §2000e–3(a) renders retal-
iation an “unlawful employment practice,” §2000e–2(g)’s
exemption would no doubt apply to a Title VII retaliatory
discharge claim. Given these provisions, Congress’ place­
ment of the motivating-factor provision within §2000e–2
cannot bear the weight the Court places on it.7
C
The Court gives no deference to the EEOC’s longstand­
ing position that §2000e–2(m) applies to retaliation be­
cause, the Court charges, the agency did not “address the
particular interplay among the status-based antidiscrimi­
——————
7 The Court’s assertion that we “confronted a similar structural dis­
pute in Lehman v. Nakshian, 453 U. S. 156 (1981),” ante, at 17, as­
sumes its own conclusion. As the Court explains, in Nakshian, the
plaintiff argued that §633a of the ADEA afforded the right to trial by
jury. 453 U. S., at 157. An amendment to the private-sector provision,
codified at 29 U. S. C. §626(c), granted that right to plaintiffs suing
private employers, as well as state and local governmental entities.
But no one argued in Nakshian that the private-sector amendment
applied to the federal-sector provision. Hence, Nakshian’s holding that
the ADEA does not permit a federal-sector plaintiff to try her case
before a jury is relevant only if the Court is correct that §2000e–2(m)
does not cover retaliation claims.
18 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
GINSBURG, J., dissenting
nation provision (§2000e–2(a)), the antiretaliation provi­
sion (§2000e–3(a)), and the motivating-factor provision
(§2000e–2(m)).” Ante, at 21. Not so.
In its compliance manual, the EEOC noted that some
courts had concluded that §2000e–2(m) does not cover
retaliation, citing as an example Woodson v. Scott Paper
Co., 109 F. 3d 913 (CA3 1997). In that decision, the Third
Circuit acknowledged it was “given pause by the fact that
. . . courts have generally borrowed from discrimination
law in determining the burdens and order of proof in
retaliation cases.” Id., at 934. One could therefore say,
the Third Circuit continued, that “Congress knew of the
practice of borrowing in retaliation cases, and presumed
that courts would continue this practice after the 1991
Act.” Ibid.While Woodson rejected that argument, the EEOC
found it sound. See EEOC Compliance Manual, at
614:0008, n. 45 (“Courts have long held that the eviden­
tiary framework for proving employment discrimination
based on race, sex, or other protected class status also
applies to claims of discrimination based on retaliation.”).
See also EEOC Guidance, at 20, n. 14 (while §2000e–2(m)
does not explicitly refer to retaliation, nothing in the
provision calls for deviation from the longstanding practice
of finding liability when a plaintiff demonstrates that
retaliatory intent motivated an adverse employment
decision). By adverting to Woodson, the EEOC made clear
that it considered the very argument the Court relies on
today. Putting down the agency’s appraisal as “generic,”
ante, at 22, is thus conspicuously unfair comment.
The Court’s second reason for refusing to accord de-
ference to the EEOC fares no better. The EEOC’s conclu-
sion that “the lessened causation standard is necessary in
order to prevent ‘proven retaliation’ from ‘go[ing] unpun­
ished,’ ” the Court reasons, “is circular” because it “as­
sumes the answer to the central question at issue here,
Cite as: 570 U. S. ____ (2013) 19
GINSBURG, J., dissenting
which is what causal relationship must be shown in order
to prove retaliation.” Ibid. That reasoning will not wash.
Under the motivating-factor test set out in §2000e–2(m), a
plaintiff prevails if she shows that proscribed conduct “was
a motivating factor” for the adverse employment action
she encountered, “even though other factors also moti-
vated the [action].” She will succeed, although the relief to
which she is entitled may be restricted. See supra, at 9.
Under the Court’s view, proof that retaliation was a factor
motivating an adverse employment action is insufficient to
establish liability under §2000e–3(a). The Court’s but-for
causation standard does not mean that the plaintiff has
failed to prove she was subjected to unlawful retaliation.
It does mean, however, that proof of a retaliatory motive
alone yields no victory for the plaintiff. Put otherwise, the
Court’s view “permits proven retaliation to go unpun­
ished,” just as the EEOC recognized. See EEOC Compli­
ance Manual, at 614:0008, n. 45.
V
A
Having narrowed §2000e–2(m) to exclude retaliation
claims, the Court turns to Gross v. FBL Financial Ser­
vices, Inc., 557 U. S. 167 (2009), to answer the question
presented: Whether a plaintiff must demonstrate but-for
causation to establish liability under §2000e–3(a).
The Court held in Gross that, in contrast to Title VII,
§623(a) of the ADEA does not authorize any age discrimi­
nation claim asserting mixed motives. Explaining that
uniform interpretation of the two statutes is sometimes
unwarranted, the Court noted in Gross that the phrase
“because of . . . age” in §623(a) has not been read “to bar
discrimination against people of all ages, even though the
Court had previously interpreted ‘because of . . . race [or]
sex’ in Title VII to bar discrimination against people of all
races and both sexes.” 557 U. S., at 175, n. 2. Yet Gross,
20 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
GINSBURG, J., dissenting
which took pains to distinguish ADEA claims from Title
VII claims, is invoked by the Court today as pathmarking.
See ante, at 2 (“The holding and analysis of [Gross] are
instructive here.”).
The word “because” in Title VII’s retaliation provision,
§2000e–3(a), the Court tells us, should be interpreted not
to accord with the interpretation of that same word in the
companion status-based discrimination provision of Ti-
tle VII, §2000e–2(a). Instead, statutory lines should be
crossed: The meaning of “because” in Title VII’s retaliation
provision should be read to mean just what the Court held
“because” means for ADEA-liability purposes. But see
Gross, 557 U. S., at 174 (“When conducting statutory
interpretation, we ‘must be careful not to apply rules
applicable under one statute to a different statute without
careful and critical examination.’ ”(quoting Holowecki, 552
U. S., at 393)). In other words, the employer prevailed in
Gross because, according to the Court, the ADEA’s anti­
discrimination prescription is not like Title VII’s. But the
employer prevails again in Nassar’s case, for there is no
“meaningful textual difference,” ante, at 11, between the
ADEA’s use of “because” and the use of the same word in
Title VII’s retaliation provision. What sense can one make
of this other than “heads the employer wins, tails the
employee loses”?
It is a standard principle of statutory interpretation that
identical phrases appearing in the same statute—here,
Title VII—ordinarily bear a consistent meaning. See
Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S.
224, 232 (2007). Following that principle, Title VII’s
retaliation provision, like its status-based discrimination
provision, would permit mixed-motive claims, and the
same causation standard would apply to both provisions.
B
The Court’s decision to construe §2000e–3(a) to require
Cite as: 570 U. S. ____ (2013) 21
GINSBURG, J., dissenting
but-for causation in line with Gross is even more con­
founding in light of Price Waterhouse. Recall that Price
Waterhouse interpreted “because of ” in §2000e–2(a) to
permit mixed-motive claims. See supra, at 8. The Court
today rejects the proposition that, if §2000e–2(m) does not
cover retaliation, such claims are governed by Price Water­
house’s burden-shifting framework, i.e., if the plaintiff
shows that discrimination was a motivating factor in an
adverse employment action, the defendant may escape
liability only by showing it would have taken the same
action had there been no illegitimate motive. It is wrong
to revert to Price Waterhouse, the Court says, because the
1991 Civil Rights Act’s amendments to Title VII abrogated
that decision.
This conclusion defies logic. Before the 1991 amend­
ments, several courts had applied Price Waterhouse’s
burden-shifting framework to retaliation claims.8 In the
Court’s view, Congress designed §2000e–2(m)’s motivating­
factor standard not only to exclude retaliation claims, but
also to override, sub silentio, Circuit precedent apply-
ing the Price Waterhouse framework to such claims. And
with what did the 1991 Congress replace the Price Water­
house burden-shifting framework? With a but-for causa­
tion requirement Gross applied to the ADEA 17 years
after the 1991 amendments to Title VII. Shut from the
Court’s sight is a legislative record replete with state­
ments evincing Congress’ intent to strengthen antidis­
crimination laws and thereby hold employers accountable
for prohibited discrimination. See Civil Rights Act of
1991, §2, 105 Stat. 1071; House Report Part II, at 18. It is
an odd mode of statutory interpretation that divines Con­
gress’ aim in 1991 by looking to a decision of this Court,
——————
8 See Vislisel v. Turnage, 930 F. 2d 9, 9–10 (CA8 1991); Carter v.
South Central Bell, 912 F. 2d 832, 843 (CA5 1990); Williams v.
Mallinckrodt, 892 F. 2d 75 (CA4 1989) (table).
22 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
GINSBURG, J., dissenting
Gross, made under a different statute in 2008, while ignor­
ing the overarching purpose of the Congress that enacted
the 1991 Civil Rights Act, see supra, at 8–10.
C
The Court shows little regard for trial judges who must
instruct juries in Title VII cases in which plaintiffs allege
both status-based discrimination and retaliation. Nor is
the Court concerned about the capacity of jurors to follow
instructions conforming to today’s decision. Causation is a
complicated concept to convey to juries in the best of cir­
cumstances. Asking jurors to determine liability based on
different standards in a single case is virtually certain to
sow confusion. That would be tolerable if the governing
statute required double standards, but here, for the rea­
sons already stated, it does not.
VI
A
The Court’s assertion that the but-for cause require­
ment it adopts necessarily follows from §2000e–3(a)’s use
of the word “because” fails to convince. Contrary to the
Court’s suggestion, see ante, at 5–6, the word “because”
does not inevitably demand but-for causation to the exclu­
sion of all other causation formulations. When more than
one factor contributes to a plaintiff ’s injury, but-for causa­
tion is problematic. See, e.g., 1 Restatement (Third) of
Torts §27, Comment a, p. 385 (2005) (noting near univer­
sal agreement that the but-for standard is inappropriate
when multiple sufficient causes exist) (hereinafter Re­
statement Third); Restatement of Torts §9, Comment b,
p. 18 (1934) (legal cause is a cause that is a “substantial
factor in bringing about the harm”).
When an event is “overdetermined,” i.e., when two forces
create an injury each alone would be sufficient to cause,
modern tort law permits the plaintiff to prevail upon
Cite as: 570 U. S. ____ (2013) 23
GINSBURG, J., dissenting
showing that either sufficient condition created the harm.
Restatement Third §27, at 376–377. In contrast, under
the Court’s approach (which it erroneously calls “textbook
tort law,” ante, at 6), a Title VII plaintiff alleging retalia­
tion cannot establish liability if her firing was prompted
by both legitimate and illegitimate factors. Ante, at
18–19.
Today’s opinion rehashes arguments rightly rejected in
Price Waterhouse. Concurring in the judgment in that
case, Justice O’Connor recognized the disconnect between
the standard the dissent advocated, which would have
imposed on the plaintiff the burden of showing but-for
causation, see 490 U. S., at 282, 286–287 (KENNEDY, J.,
dissenting), and the common-law doctrines on which the
dissent relied. As Justice O’Connor explained:
“[I]n the area of tort liability, from whence the dis­
sent’s ‘but-for’ standard of causation is derived, . . .
the law has long recognized that in certain ‘civil cases’
leaving the burden of persuasion on the plaintiff to
prove ‘but-for’ causation would be both unfair and de­
structive of the deterrent purposes embodied in the
concept of duty of care. Thus, in multiple causation
cases, where a breach of duty has been established,
the common law of torts has long shifted the burden of
proof to . . . defendants to prove that their negligent
actions were not the ‘but-for’ cause of the plaintiff ’s
injury.” Id., at 263–264 (concurring in judgment) (cit­
ing Summers v. Tice, 33 Cal. 2d 80, 84–87, 199 P. 2d
1, 3–4 (1948)).
Justice Brennan’s plurality opinion was even less solici­
tous of the dissent’s approach. Noting that, under the
standard embraced by the dissent in Price Waterhouse,
neither of two sufficient forces would constitute cause even
if either one alone would have led to the injury, the plural­
ity remarked: “We need not leave our common sense at the
doorstep when we interpret a statute.” 490 U. S., at 241.
24 UNIVERSITY OF TEX. SOUTHWESTERN MEDICAL
CENTER v. NASSAR
GINSBURG, J., dissenting
B
As the plurality and concurring opinions in Price Water­
house indicate, a strict but-for test is particularly ill suited
to employment discrimination cases. Even if the test is
appropriate in some tort contexts, “it is an entirely differ­
ent matter to determine a ‘but-for’ relation when . . .
consider[ing], not physical forces, but the mind-related
characteristics that constitute motive.” Gross, 557 U. S., at
190 (BREYER, J., dissenting). When assessing an employ­
er’s multiple motives, “to apply ‘but-for’ causation is to
engage in a hypothetical inquiry about what would have
happened if the employer’s thoughts and other circum­
stances had been different.” Id., at 191. See also Price
Waterhouse, 490 U. S., at 264 (opinion of O’Connor, J.)
(“ ‘[A]t . . . times the [but-for] test demands the impossible.
It challenges the imagination of the trier to probe into a
purely fanciful and unknowable state of affairs.’ ” (quoting
Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev.
60, 67 (1956))).
This point, lost on the Court, was not lost on Congress.
When Title VII was enacted, Congress considered and
rejected an amendment that would have placed the word
“solely” before “because of [the complainant’s] race, color,
religion, sex, or national origin.” See 110 Cong. Rec. 2728,
13837–13838 (1964). Senator Case, a prime sponsor of
Title VII, commented that a “sole cause” standard would
render the Act “totally nugatory.” Id., at 13837. Life does
not shape up that way, the Senator suggested, comment­
ing “[i]f anyone ever had an action that was motivated by
a single cause, he is a different kind of animal from any
I know of.” Ibid.* * *
The Court holds, at odds with a solid line of decisions
recognizing that retaliation is inextricably bound up with
status-based discrimination, that §2000e–2(m) excludes
Cite as: 570 U. S. ____ (2013) 25
GINSBURG, J., dissenting
retaliation claims. It then reaches outside of Title VII to
arrive at an interpretation of “because” that lacks sensitiv­
ity to the realities of life at work. In this endeavor, the
Court is guided neither by precedent, nor by the aims
of legislators who formulated and amended Title VII. In-
deed, the Court appears driven by a zeal to reduce the
number of retaliation claims filed against employers. See
ante, at 18–19. Congress had no such goal in mind when
it added §2000e–2(m) to Title VII. See House Report Part
II, at 2. Today’s misguided judgment, along with the
judgment in Vance v. Ball State Univ., post, p. 1, should
prompt yet another Civil Rights Restoration Act.
For the reasons stated, I would affirm the judgment of
the Fifth Circuit.