GROSS v. FBL FINANCIAL SERVICES, INC.

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167 OCTOBER TERM, 2008
Syllabus
GROSS v. FBL FINANCIAL SERVICES, INC.
certiorari to the united states court of appeals for
the eighth circuit
No. 08–441. Argued March 31, 2009—Decided June 18, 2009
Petitioner Gross filed suit, alleging that respondent (FBL) demoted him in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
which makes it unlawful for an employer to take adverse action against
an employee “because of such individual’s age,” 29 U. S. C. § 623(a). At
the close of trial, and over FBL’s objections, the District Court in
structed the jury to enter a verdict for Gross if he proved, by a prepon
derance of the evidence, that he was demoted and his age was a motivat
ing factor in the demotion decision, and told the jury that age was a
motivating factor if it played a part in the demotion. It also instructed
the jury to return a verdict for FBL if it proved that it would have
demoted Gross regardless of age. The jury returned a verdict for
Gross. The Eighth Circuit reversed and remanded for a new trial, hold
ing that the jury had been incorrectly instructed under the standard
established in Price Waterhouse v. Hopkins, 490 U. S. 228, for cases
under Title VII of the Civil Rights Act of 1964 when an employee al
leges that he suffered an adverse employment action because of both
permissible and impermissible considerations—i. e., a “mixed-motives”
case.
Held: A plaintiff bringing an ADEA disparate-treatment claim must
prove, by a preponderance of the evidence, that age was the “but-for”
cause of the challenged adverse employment action. The burden of
persuasion does not shift to the employer to show that it would have
taken the action regardless of age, even when a plaintiff has produced
some evidence that age was one motivating factor in that decision.
Pp. 173–180.
(a) Because Title VII is materially different with respect to the rele
vant burden of persuasion, this Court’s interpretation of the ADEA is
not governed by Title VII decisions such as Price Waterhouse and De
sert Palace, Inc. v. Costa, 539 U. S. 90, 94–95. This Court has never
applied Title VII’s burden-shifting framework to ADEA claims and de
clines to do so now. When conducting statutory interpretation, the
Court “must be careful not to apply rules applicable under one statute to
a different statute without careful and critical examination.” Federal
Express Corp. v. Holowecki, 552 U. S. 389, 393. Unlike Title VII, which
has been amended to explicitly authorize discrimination claims where
an improper consideration was “a motivating factor” for the adverse

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168 GROSS v. FBL FINANCIAL SERVICES, INC.
Syllabus
action, see 42 U. S. C. §§ 2000e–2(m) and 2000e–5(g)(2)(B), the ADEA
does not provide that a plaintiff may establish discrimination by
showing that age was simply a motivating factor. Moreover, Congress
neglected to add such a provision to the ADEA when it added §§ 2000e–
2(m) and 2000e–5(g)(2)(B) to Title VII, even though it contemporane
ously amended the ADEA in several ways. When Congress amends
one statutory provision but not another, it is presumed to have acted
intentionally, see EEOC v. Arabian American Oil Co., 499 U. S. 244,
256, and “negative implications raised by disparate provisions are stron
gest” where the provisions were “considered simultaneously when the
language raising the implication was inserted,” Lindh v. Murphy, 521
U. S. 320, 330. Pp. 173–175.
(b) The ADEA’s text does not authorize an alleged mixed-motives age
discrimination claim. The ordinary meaning of the ADEA’s require
ment that an employer took adverse action “because of ” age is that age
was the “reason” that the employer decided to act. See Hazen Paper
Co. v. Biggins, 507 U. S. 604, 610. To establish a disparate-treatment
claim under this plain language, a plaintiff must prove that age was
the “but-for” cause of the employer’s adverse decision. See Bridge v.
Phoenix Bond & Indemnity Co., 553 U. S. 639, 653–654. It follows that
under § 623(a)(1), the plaintiff retains the burden of persuasion to estab
lish that “but-for” cause. This Court has previously held this to be the
burden’s proper allocation in ADEA cases, see, e. g., Kentucky Retire
ment Systems v. EEOC, 554 U. S. 135, 139–143, 148–150, and nothing
in the statute’s text indicates that Congress has carved out an exception
for a subset of ADEA cases. Where a statute is “silent on the alloca
tion of the burden of persuasion,” “the ordinary default rule [is] that
plaintiffs bear the risk of failing to prove their claims.” Schaffer v.
Weast, 546 U. S. 49, 56. Hence, the burden of persuasion is the same in
alleged mixed-motives cases as in any other ADEA disparate-treatment
action. Pp. 175–178.
(c) This Court rejects petitioner’s contention that the proper inter
pretation of the ADEA is nonetheless controlled by Price Waterhouse,
which initially established that the burden of persuasion shifted in al
leged mixed-motives Title VII claims. It is far from clear that the
Court would have the same approach were it to consider the question
today in the first instance. Whatever Price Waterhouse’s deficiencies
in retrospect, it has become evident in the years since that case was
decided that its burden-shifting framework is difficult to apply. The
problems associated with its application have eliminated any perceivable
benefit to extending its framework to ADEA claims. Cf. Continental
T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47. Pp. 178–179.
526 F. 3d 356, vacated and remanded.

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169 Cite as: 557 U. S. 167 (2009)
Opinion of the Court
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dis
senting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined,
post, p. 180. Breyer, J., filed a dissenting opinion, in which Souter and
Ginsburg, JJ., joined, post, p. 190.
Eric Schnapper argued the cause for petitioner. With
him on the briefs were Beth A. Townsend and Michael J.
Carroll.
Lisa S. Blatt argued the cause for the United States as
amicus curiae urging reversal. With her on the brief were
then-Acting Solicitor General Kneedler, Acting Assistant
Attorney General King, Deputy Solicitor General Katyal,
Dennis J. Dimsey, Angela M. Miller, James L. Lee, Carolyn
L. Wheeler, and Jennifer S. Goldstein.
Carter G. Phillips argued the cause for respondent. With
him on the brief were Frank Harty, Debra L. Hulett, and
Jordan B. Hansell.*
Justice Thomas delivered the opinion of the Court.
The question presented by the petitioner in this case is
whether a plaintiff must present direct evidence of age dis
*Michael L. Foreman, Audrey Wiggins, Sarah Crawford, Joseph M.
Sellers, Christine E. Webber, Jenny R. Yang, Vincent A. Eng, John Tras
vina, Nina Perales, Elise Sandra Shore, Judith L. Lichtman, Dina Las
sow, and Jocelyn Samuels filed a brief for the Lawyers’ Committee for
Civil Rights Under Law et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Chamber
of Commerce of the United States of America by Glen D. Nager, Shay
Dvoretzky, Robin S. Conrad, and Shane B. Kawka; for the Equal Employ
ment Advisory Council by Rae T. Vann; and for the National School
Boards Association by Francisco M. Negro´ n, Jr., Lisa E. Soronen, and
Amy M. Steketee.
Briefs of amici curiae were filed for AARP by Thomas W. Osborne,
Laurie A. McCann, Daniel B. Kohrman, and Melvin R. Radowitz; for the
American Association for Justice by Jeffrey L. Needle and Les Weisbrod;
for the National Employment Lawyers Association by Douglas B. Huron,
Stephen Z. Chertkof, and Paul W. Mollica; and for the National Federation
of Independent Business Small Business Legal Center et al. by Alan D.
Berkowitz, Jeffrey W. Rubin, Karen R. Harned, and Elizabeth Milito.

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170 GROSS v. FBL FINANCIAL SERVICES, INC.
Opinion of the Court
crimination in order to obtain a mixed-motives jury instruc
tion in a suit brought under the Age Discrimination in Em
ployment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29
U. S. C. § 621 et seq. Because we hold that such a jury in
struction is never proper in an ADEA case, we vacate the
decision below.
I
Petitioner Jack Gross began working for respondent FBL
Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held
the position of claims administration director. But in 2003,
when he was 54 years old, Gross was reassigned to the posi
tion of claims project coordinator. At that same time, FBL
transferred many of Gross’ job responsibilities to a newly
created position—claims administration manager. That po
sition was given to Lisa Kneeskern, who had previously been
supervised by Gross and who was then in her early forties.
App. to Pet. for Cert. 15a, 23a (District Court opinion). Al
though Gross (in his new position) and Kneeskern received
the same compensation, Gross considered the reassignment
a demotion because of FBL’s reallocation of his former job
responsibilities to Kneeskern.
In April 2004, Gross filed suit in District Court, alleging
that his reassignment to the position of claims project coordi
nator violated the ADEA, which makes it unlawful for an
employer to take adverse action against an employee “be
cause of such individual’s age.” 29 U. S. C. § 623(a). The
case proceeded to trial, where Gross introduced evidence
suggesting that his reassignment was based at least in part
on his age. FBL defended its decision on the grounds that
Gross’ reassignment was part of a corporate restructuring
and that Gross’ new position was better suited to his skills.
See App. to Pet. for Cert. 23a (District Court opinion).
At the close of trial, and over FBL’s objections, the Dis
trict Court instructed the jury that it must return a verdict
for Gross if he proved, by a preponderance of the evidence,
that FBL “demoted [him] to claims projec[t] coordinator” and

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Opinion of the Court
that his “age was a motivating factor” in FBL’s decision to
demote him. App. 9–10. The jury was further instructed
that Gross’ age would qualify as a “ ‘motivating factor,’ if [it]
played a part or a role in [FBL]’s decision to demote [him].”
Id., at 10. The jury was also instructed regarding FBL’s
burden of proof. According to the District Court, the “ver
dict must be for [FBL] . . . if it has been proved by the
preponderance of the evidence that [FBL] would have de
moted [Gross] regardless of his age.” Ibid. The jury re
turned a verdict for Gross, awarding him $46,945 in lost
compensation. Id., at 8.
FBL challenged the jury instructions on appeal. The
United States Court of Appeals for the Eighth Circuit re
versed and remanded for a new trial, holding that the jury
had been incorrectly instructed under the standard estab
lished in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).
See 526 F. 3d 356, 358 (2008). In Price Waterhouse, this
Court addressed the proper allocation of the burden of per
suasion in cases brought under Title VII of the Civil Rights
Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e
et seq., when an employee alleges that he suffered an adverse
employment action because of both permissible and imper
missible considerations—i. e., a “mixed-motives” case. 490
U. S., at 232, 244–247 (plurality opinion). The Price Water
house decision was splintered. Four Justices joined a plu
rality opinion, see id., at 231–258, Justices White and O’Con
nor separately concurred in the judgment, see id., at 258–261
(opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.),
and three Justices dissented, see id., at 279–295 (opinion of
Kennedy, J.). Six Justices ultimately agreed that if a Title
VII plaintiff shows that discrimination was a “motivating”
or a “ ‘substantial’ ” factor in the employer’s action, the bur
den of persuasion should shift to the employer to show that
it would have taken the same action regardless of that im
permissible consideration. See id., at 258 (plurality opin
ion); id., at 259–260 (opinion of White, J.); id., at 276 (opinion

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172 GROSS v. FBL FINANCIAL SERVICES, INC.
Opinion of the Court
of O’Connor, J.). Justice O’Connor further found that to
shift the burden of persuasion to the employer, the employee
must present “direct evidence that an illegitimate criterion
was a substantial factor in the [employment] decision.”
Ibid.
In accordance with Circuit precedent, the Court of Ap
peals identified Justice O’Connor’s opinion as controlling.
See 526 F. 3d, at 359 (citing Erickson v. Farmland Indus
tries, Inc., 271 F. 3d 718, 724 (CA8 2001)). Applying that
standard, the Court of Appeals found that Gross needed to
present “[d]irect evidence . . . sufficient to support a finding
by a reasonable fact finder that an illegitimate criterion actu
ally motivated the adverse employment action.” 526 F. 3d,
at 359 (internal quotation marks omitted). In the Court of
Appeals’ view, “direct evidence” is only that evidence that
“show[s] a specific link between the alleged discriminatory
animus and the challenged decision.” Ibid. (internal quota
tion marks omitted). Only upon a presentation of such evi
dence, the Court of Appeals held, should the burden shift to
the employer “ ‘to convince the trier of fact that it is more
likely than not that the decision would have been the same
absent consideration of the illegitimate factor.’ ” Ibid.
(quoting Price Waterhouse, supra, at 276 (opinion of O’Con
nor, J.)).
The Court of Appeals thus concluded that the District
Court’s jury instructions were flawed because they allowed
the burden to shift to FBL upon a presentation of a prepon
derance of any category of evidence showing that age was a
motivating factor—not just “direct evidence” related to
FBL’s alleged consideration of age. See 526 F. 3d, at 360.
Because Gross conceded that he had not presented direct
evidence of discrimination, the Court of Appeals held that
the District Court should not have given the mixed-motives
instruction. Ibid. Rather, Gross should have been held to
the burden of persuasion applicable to typical, non-mixed
motives claims; the jury thus should have been instructed

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Opinion of the Court
only to determine whether Gross had carried his burden of
“prov[ing] that age was the determining factor in FBL’s em
ployment action.” See ibid.
We granted certiorari, 555 U. S. 1066 (2008), and now va
cate the decision of the Court of Appeals.
II
The parties have asked us to decide whether a plaintiff
must “present direct evidence of discrimination in order
to obtain a mixed-motive instruction in a non-Title VII dis
crimination case.” Pet. for Cert. i. Before reaching this
question, however, we must first determine whether the
burden of persuasion ever shifts to the party defending an
alleged mixed-motives discrimination claim brought under
the ADEA.1 We hold that it does not.
A
Petitioner relies on this Court’s decisions construing Title
VII for his interpretation of the ADEA. Because Title VII
is materially different with respect to the relevant burden
of persuasion, however, these decisions do not control our
construction of the ADEA.
In Price Waterhouse, a plurality of the Court and two Jus
tices concurring in the judgment determined that once a
“plaintiff in a Title VII case proves that [the plaintiff ’s mem
bership in a protected class] played a motivating part in an
1 Although the parties did not specifically frame the question to include
this threshold inquiry, “[t]he statement of any question presented is
deemed to comprise every subsidiary question fairly included therein.”
This Court’s Rule 14.1; see also City of Sherrill v. Oneida Indian Nation
of N. Y., 544 U. S. 197, 214, n. 8 (2005) (“ ‘Questions not explicitly mentioned
but essential to the analysis of the decisions below or to the correct dispo
sition of the other issues have been treated as subsidiary issues fairly
comprised by the question presented’ ” (quoting R. Stern, E. Gressman,
S. Shapiro, & K. Geller, Supreme Court Practice 414 (8th ed. 2002))); Bal
lard v. Commissioner, 544 U. S. 40, 46–47, and n. 2 (2005) (evaluating
“a question anterior” to the “questions the parties raised”).

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employment decision, the defendant may avoid a finding of
liability only by proving by a preponderance of the evidence
that it would have made the same decision even if it had not
taken [that factor] into account.” 490 U. S., at 258; see also
id., at 259–260 (opinion of White, J.); id., at 276 (opinion of
O’Connor, J.). But as we explained in Desert Palace, Inc.
v. Costa, 539 U. S. 90, 94–95 (2003), Congress has since
amended Title VII by explicitly authorizing discrimination
claims in which an improper consideration was “a motivating
factor” for an adverse employment decision. See 42 U. S. C.
§ 2000e–2(m) (providing that “an unlawful employment
practice is established when the complaining party demon
strates that race, color, religion, sex, or national origin was
a motivating factor for any employment practice, even
though other factors also motivated the practice” (emphasis
added)); § 2000e–5(g)(2)(B) (restricting the remedies avail
able to plaintiffs proving violations of § 2000e–2(m)).
This Court has never held that this burden-shifting frame
work applies to ADEA claims. And, we decline to do so
now. 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.”
Federal Express Corp. v. Holowecki, 552 U. S. 389, 393
(2008). Unlike Title VII, the ADEA’s text does not provide
that a plaintiff may establish discrimination by showing that
age was simply a motivating factor. Moreover, Congress
neglected to add such a provision to the ADEA when
it amended Title VII to add §§ 2000e–2(m) and 2000e–
5(g)(2)(B), even though it contemporaneously amended the
ADEA in several ways, see Civil Rights Act of 1991, § 115,
105 Stat. 1079; id., § 302, at 1088.
We cannot ignore Congress’ decision to amend Title VII’s
relevant provisions but not make similar changes to the
ADEA. When Congress amends one statutory provision
but not another, it is presumed to have acted intentionally.

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See EEOC v. Arabian American Oil Co., 499 U. S. 244, 256
(1991). Furthermore, as the Court has explained, “negative
implications raised by disparate provisions are strongest”
when the provisions were “considered simultaneously when
the language raising the implication was inserted.” Lindh
v. Murphy, 521 U. S. 320, 330 (1997). As a result, the
Court’s interpretation of the ADEA is not governed by Title
VII decisions such as Desert Palace and Price Waterhouse.2
B
Our inquiry therefore must focus on the text of the ADEA
to decide whether it authorizes a mixed-motives age discrim
ination claim. It does not. “Statutory construction must
begin with the language employed by Congress and the as
sumption that the ordinary meaning of that language accu
rately expresses the legislative purpose.” Engine Mfrs.
Assn. v. South Coast Air Quality Management Dist., 541
2 Justice Stevens argues that the Court must incorporate its past in
terpretations of Title VII into the ADEA because “the substantive provi
sions of the ADEA were derived in haec verba from Title VII,” post, at
183 (dissenting opinion) (internal quotation marks omitted), and because
the Court has frequently applied its interpretations of Title VII to the
ADEA, see post, at 183–185. But the Court’s approach to interpreting
the ADEA in light of Title VII has not been uniform. In General Dy
namics Land Systems, Inc. v. Cline, 540 U. S. 581 (2004), for example, the
Court declined to interpret the phrase “because of . . . age” in 29 U. S. C.
§ 623(a) 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, see
540 U. S., at 584, 592, n. 5. And the Court has not definitively decided
whether the evidentiary framework of McDonnell Douglas Corp. v. Green,
411 U. S. 792 (1973), utilized in Title VII cases is appropriate in the ADEA
context. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S.
133, 142 (2000); O’Connor v. Consolidated Coin Caterers Corp., 517 U. S.
308, 311 (1996). In this instance, it is the textual differences between
Title VII and the ADEA that prevent us from applying Price Waterhouse
and Desert Palace to federal age discrimination claims.

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U. S. 246, 252 (2004) (internal quotation marks omitted).
The ADEA provides, in relevant part, that “[i]t shall be un
lawful 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, con
ditions, or privileges of employment, because of such individ
ual’s age.” 29 U. S. C. § 623(a)(1) (emphasis added).
The words “because of ” mean “by reason of: on account
of.” 1 Webster’s Third New International Dictionary 194
(1966); see also 1 Oxford English Dictionary 746 (1933) (de
fining “because of ” to mean “[b]y reason of, on account of ”
(italics in original)); The Random House Dictionary of the
English Language 132 (1966) (defining “because” to mean
“by reason; on account”). Thus, the ordinary meaning of the
ADEA’s requirement that an employer took adverse action
“because of ” age is that age was the “reason” that the em
ployer decided to act. See Hazen Paper Co. v. Biggins, 507
U. S. 604, 610 (1993) (explaining that the claim “cannot suc
ceed unless the employee’s protected trait actually played a
role in [the employer’s decisionmaking] process and had a
determinative influence on the outcome” (emphasis added)).
To establish a disparate-treatment claim under the plain lan
guage of the ADEA, therefore, a plaintiff must prove that
age was the “but-for” cause of the employer’s adverse deci
sion. See Bridge v. Phoenix Bond & Indemnity Co., 553
U. S. 639, 653–654 (2008) (recognizing that the phrase, “by rea
son of,” requires at least a showing of “but for” causation (in
ternal quotation marks omitted)); Safeco Ins. Co. of America
v. Burr, 551 U. S. 47, 63–64, and n. 14 (2007) (observing that
“[i]n common talk, the phrase ‘based on’ indicates a but-for
causal relationship and thus a necessary logical condition”
and that the statutory phrase, “based on,” has the same
meaning as the phrase, “because of ” (internal quotation
marks omitted)); cf. W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984)

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(“An act or omission is not regarded as a cause of an event
if the particular event would have occurred without it”).3
It follows, then, that under § 623(a)(1), the plaintiff retains
the burden of persuasion to establish that age was the “but
for” cause of the employer’s adverse action. Indeed, we
have previously held that the burden is allocated in this man
ner in ADEA cases. See Kentucky Retirement Systems v.
EEOC, 554 U. S. 135, 139–143, 148–150 (2008); Reeves v.
Sanderson Plumbing Products, Inc., 530 U. S. 133, 141, 143
(2000). And nothing in the statute’s text indicates that Con
gress has carved out an exception to that rule for a subset
of ADEA cases. Where the statutory text is “silent on the
allocation of the burden of persuasion,” we “begin with the
ordinary default rule that plaintiffs bear the risk of failing
to prove their claims.” Schaffer v. Weast, 546 U. S. 49, 56
(2005); see also Meacham v. Knolls Atomic Power Labora
tory, 554 U. S. 84, 92 (2008) (“Absent some reason to be
lieve that Congress intended otherwise, . . . we will conclude
that the burden of persuasion lies where it usually falls, upon
the party seeking relief ” (internal quotation marks omit
ted)). We have no warrant to depart from the general rule
in this setting.
Hence, the burden of persuasion necessary to establish em
ployer liability is the same in alleged mixed-motives cases as
in any other ADEA disparate-treatment action. A plaintiff
must prove by a preponderance of the evidence (which may
3 Justice Breyer contends that there is “nothing unfair or impractical”
about hinging liability on whether “forbidden motive . . . play[ed] a role in
the employer’s decision.” Post, at 191, 192 (dissenting opinion). But that
is a decision for Congress to make. See Florida Dept. of Revenue v. Pic
cadilly Cafeterias, Inc., 554 U. S. 33, 52 (2008). Congress amended Title
VII to allow for employer liability when discrimination “was a motivating
factor for any employment practice, even though other factors also moti
vated the practice,” 42 U. S. C. § 2000e–2(m) (emphasis added), but did not
similarly amend the ADEA, see supra, at 173–174. We must give effect
to Congress’ choice. See 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 270
(2009).

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178 GROSS v. FBL FINANCIAL SERVICES, INC.
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be direct or circumstantial) that age was the “but-for” cause
of the challenged employer decision. See Reeves, supra, at
141–143, 147.4
III
Finally, we reject petitioner’s contention that our inter
pretation of the ADEA is controlled by Price Waterhouse,
which initially established that the burden of persuasion
shifted in alleged mixed-motives Title VII claims.5 In any
event, it is far from clear that the Court would have the same
approach were it to consider the question today in the first
4 Because we hold that ADEA plaintiffs retain the burden of persuasion
to prove all disparate-treatment claims, we do not need to address
whether plaintiffs must present direct, rather than circumstantial, evi
dence to obtain a burden-shifting instruction. There is no heightened
evidentiary requirement for ADEA plaintiffs to satisfy their burden of
persuasion that age was the “but-for” cause of their employer’s adverse
action, see 29 U. S. C. § 623(a), and we will imply none. “Congress has
been unequivocal when imposing heightened proof requirements” in other
statutory contexts, including in other subsections within Title 29, when it
has seen fit. See Desert Palace, Inc. v. Costa, 539 U. S. 90, 99 (2003);
see also, e. g., 25 U. S. C. § 2504(b)(2)(B) (imposing “clear and convincing
evidence” standard); 29 U. S. C. § 722(a)(2)(A) (same).
5 Justice Stevens also contends that we must apply Price Waterhouse
under the reasoning of Smith v. City of Jackson, 544 U. S. 228 (2005).
See post, at 186. In Smith, the Court applied to the ADEA its pre-1991
interpretation of Title VII with respect to disparate-impact claims despite
Congress’ 1991 amendment adding disparate-impact claims to Title VII
but not the ADEA. 544 U. S., at 240. But the amendments made by
Congress in this same legislation, which added the “motivating factor”
language to Title VII, undermine Justice Stevens’ argument. Con
gress not only explicitly added “motivating factor” liability to Title VII,
see supra, at 173–175, but it also partially abrogated Price Waterhouse’s
holding by eliminating an employer’s complete affirmative defense to “mo
tivating factor” claims, see 42 U. S. C. § 2000e–5(g)(2)(B). If such “moti
vating factor” claims were already part of Title VII, the addition of
§ 2000e–5(g)(2)(B) alone would have been sufficient. Congress’ careful
tailoring of the “motivating factor” claim in Title VII, as well as the ab
sence of a provision parallel to § 2000e–2(m) in the ADEA, confirms that
we cannot transfer the Price Waterhouse burden-shifting framework into
the ADEA.

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instance. Cf. 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 270
(2009) (declining to “introduc[e] a qualification into the
ADEA that is not found in its text”); Meacham, supra, at
102 (explaining that the ADEA must be “read . . . the way
Congress wrote it”).
Whatever the deficiencies of Price Waterhouse in retro
spect, it has become evident in the years since that case was
decided that its burden-shifting framework is difficult to
apply. For example, in cases tried to a jury, courts have
found it particularly difficult to craft an instruction to ex
plain its burden-shifting framework. See, e. g., Tyler v.
Bethlehem Steel Corp., 958 F. 2d 1176, 1179 (CA2 1992) (re
ferring to “the murky water of shifting burdens in discrimi
nation cases”); Visser v. Packer Engineering Associates,
Inc., 924 F. 2d 655, 661 (CA7 1991) (en banc) (Flaum, J.,
dissenting) (“The difficulty judges have in formulating
[burden-shifting] instructions and jurors have in applying
them can be seen in the fact that jury verdicts in ADEA
cases are supplanted by judgments notwithstanding the ver
dict or reversed on appeal more frequently than jury verdicts
generally”). Thus, even if Price Waterhouse was doctrin
ally sound, the problems associated with its application have
eliminated any perceivable benefit to extending its frame
work to ADEA claims. Cf. Continental T. V., Inc. v. GTE
Sylvania Inc., 433 U. S. 36, 47 (1977) (reevaluating precedent
that was subject to criticism and “continuing controversy
and confusion”); Payne v. Tennessee, 501 U. S. 808, 839–844
(1991) (Souter, J., concurring).6
6 Gross points out that the Court has also applied a burden-shifting
framework to certain claims brought in contexts other than pursuant to
Title VII. See Brief for Petitioner 54–55 (citing, inter alia, NLRB v.
Transportation Management Corp., 462 U. S. 393, 401–403 (1983) (claims
brought under the National Labor Relations Act (NLRA)); Mt. Healthy
City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (constitutional claims)).
These cases, however, do not require the Court to adopt his contra statu
tory position. The case involving the NLRA did not require the Court to
decide in the first instance whether burden shifting should apply as the

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180 GROSS v. FBL FINANCIAL SERVICES, INC.
Stevens, J., dissenting
IV
We hold that a plaintiff bringing a disparate-treatment
claim pursuant to the ADEA must prove, by a preponder
ance of the evidence, that age was the “but-for” cause of
the challenged adverse employment action. The burden of
persuasion does not shift to the employer to show that it
would have taken the action regardless of age, even when a
plaintiff has produced some evidence that age was one moti
vating factor in that decision. Accordingly, we vacate the
judgment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
The Age Discrimination in Employment Act of 1967
(ADEA), 29 U. S. C. § 621 et seq., makes it unlawful for an
employer to discriminate against any employee “because of ”
that individual’s age, § 623(a). The most natural reading of
this statutory text prohibits adverse employment actions
motivated in whole or in part by the age of the employee.
The “but-for” causation standard endorsed by the Court
today was advanced in Justice Kennedy’s dissenting opin
ion in Price Waterhouse v. Hopkins, 490 U. S. 228, 279 (1989),
a case construing identical language in Title VII of the Civil
Rights Act of 1964, 42 U. S. C. § 2000e–2(a)(1). Not only did
the Court reject the but-for standard in that case, but so too
did Congress when it amended Title VII in 1991. Given this
unambiguous history, it is particularly inappropriate for the
Court, on its own initiative, to adopt an interpretation of the
Court instead deferred to the National Labor Relation Board’s determina
tion that such a framework was appropriate. See NLRB, supra, at 400–
403. And the constitutional cases such as Mt. Healthy have no bearing
on the correct interpretation of ADEA claims, which are governed by
statutory text.

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Stevens, J., dissenting
causation requirement in the ADEA that differs from the
established reading of Title VII. I disagree not only with
the Court’s interpretation of the statute, but also with its
decision to engage in unnecessary lawmaking. I would sim
ply answer the question presented by the certiorari petition
and hold that a plaintiff need not present direct evidence of
age discrimination to obtain a mixed-motives instruction.
I
The Court asks whether a mixed-motives instruction is
ever appropriate in an ADEA case. As it acknowledges,
this was not the question we granted certiorari to decide.1
Instead, the question arose for the first time in respondent’s
brief, which asked us to “overrule Price Waterhouse with
respect to its application to the ADEA.” Brief for Respond
ent 26 (boldface type deleted). In the usual course, this
Court would not entertain such a request raised only in a
merits brief: “ ‘We would normally expect notice of an intent
to make so far-reaching an argument in the respondent’s op
position to a petition for certiorari, cf. this Court’s Rule 15.2,
thereby assuring adequate preparation time for those likely
affected and wishing to participate.’ ” Alabama v. Shelton,
535 U. S. 654, 660, n. 3 (2002) (quoting South Central Bell
Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999)). Yet
the Court is unconcerned that the question it chooses to an
swer has not been briefed by the parties or interested amici
curiae. Its failure to consider the views of the United
States, which represents the agency charged with adminis
tering the ADEA, is especially irresponsible.2
1 “The question presented by the petitioner in this case is whether a
plaintiff must present direct evidence of age discrimination in order to
obtain a mixed-motives jury instruction in a suit brought under the
[ADEA].” Ante, at 169–170.
2 The United States filed an amicus curiae brief supporting petitioner
on the question presented. At oral argument, the Government urged that
the Court should not reach the issue it takes up today. See Tr. of Oral
Arg. 20–21, 28–29.

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182 GROSS v. FBL FINANCIAL SERVICES, INC.
Stevens, J., dissenting
Unfortunately, the majority’s inattention to prudential
Court practices is matched by its utter disregard of our prec
edent and Congress’ intent. The ADEA provides 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, conditions, or privileges of employment, because of
such individual’s age.” 29 U. S. C. § 623(a)(1) (emphasis
added). As we recognized in Price Waterhouse when we
construed the identical “because of ” language of Title VII,
see 42 U. S. C. § 2000e–2(a)(1) (making it unlawful for an
employer “to fail or refuse to hire or to discharge any
individual . . . with respect to his compensation, terms, condi
tions, or privileges of employment, because of such individu
al’s race, color, religion, sex, or national origin” (emphasis
added)), the most natural reading of the text proscribes ad
verse employment actions motivated in whole or in part by
the age of the employee.
In Price Waterhouse, we concluded that the words “ ‘be
cause of ’ such individual’s . . . sex . . . mean that gender must
be irrelevant to employment decisions.” 490 U. S., at 240
(plurality opinion) (emphasis deleted); see also id., at 260
(White, J., concurring in judgment). To establish a violation
of Title VII, we therefore held, a plaintiff had to prove that
her sex was a motivating factor in an adverse employment
decision.3 We recognized that the employer had an affirma
tive defense: It could avoid a finding of liability by proving
3 Although Justice White stated that the plaintiff had to show that her
sex was a “substantial” factor, while the plurality used the term “motivat
ing” factor, these standards are interchangeable, as evidenced by Justice
White’s quotation of Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274,
287 (1977): “ ‘[T]he burden was properly placed upon [the plaintiff to show
that the illegitimate criterion] was a “substantial factor”—or, to put it in
other words, that it was a “motivating factor” ’ ” in the adverse decision.
Price Waterhouse, 490 U. S., at 259 (emphasis added); see also id., at 249
(plurality opinion) (using “substantial” and “motivating” interchangeably).

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Stevens, J., dissenting
that it would have made the same decision even if it had
not taken the plaintiff ’s sex into account. Id., at 244–245
(plurality opinion). But this affirmative defense did not
alter the meaning of “because of.” As we made clear, when
“an employer considers both gender and legitimate factors
at the time of making a decision, that decision was ‘because
of ’ sex.” Id., at 241; see also id., at 260 (White, J., con
curring in judgment). We readily rejected the dissent’s
contrary assertion. “To construe the words ‘because of ’ as
colloquial shorthand for ‘but-for’ causation,” we said, “is
to misunderstand them.” Id., at 240 (plurality opinion).4
Today, however, the Court interprets the words “because
of ” in the ADEA “as colloquial shorthand for ‘but-for’ cau
sation.” Ibid. That the Court is construing the ADEA
rather than Title VII does not justify this departure from
precedent. The relevant language in the two statutes is
identical, and we have long recognized that our interpreta
tions of Title VII’s language apply “with equal force in the
context of age discrimination, for the substantive provisions
of the ADEA ‘were derived in haec verba from Title VII.’ ”
Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121
(1985) (quoting Lorillard v. Pons, 434 U. S. 575, 584 (1978)).
See generally Northcross v. Board of Ed. of Memphis City
Schools, 412 U. S. 427, 428 (1973) (per curiam). For this
reason, Justice Kennedy’s dissent in Price Waterhouse as
sumed the plurality’s mixed-motives framework extended to
the ADEA, see 490 U. S., at 292, and the Courts of Appeals
4 We were no doubt aware that dictionaries define “because of ” as “by
reason of ” or “on account of.” Ante, at 176–177. Contrary to the majori
ty’s bald assertion, however, this does not establish that the term denotes
but-for causation. The dictionaries the Court cites do not, for instance,
define “because of ” as “solely by reason of ” or “exclusively on account
of.” In Price Waterhouse, we recognized that the words “because of ” do
not mean “solely because of,” and we held that the inquiry “commanded
by the words” of the statute was whether gender was a motivating factor
in the employment decision. 490 U. S., at 241 (plurality opinion).

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184 GROSS v. FBL FINANCIAL SERVICES, INC.
Stevens, J., dissenting
to have considered the issue unanimously have applied Price
Waterhouse to ADEA claims.5
The Court nonetheless suggests that applying Price Wa
terhouse would be inconsistent with our ADEA precedents.
In particular, the Court relies on our statement in Hazen
Paper Co. v. Biggins, 507 U. S. 604, 610 (1993), that “[a
disparate-treatment] claim ‘cannot succeed unless the em
ployee’s protected trait actually played a role in [the employ
er’s decisionmaking] process and had a determinative influ
ence on the outcome.’ ” Ante, at 176. The italicized phrase
is at best inconclusive as to the meaning of the ADEA’s “be
cause of ” language, however, as other passages in Hazen
Paper Co. demonstrate. We also stated, for instance, that
the ADEA “requires the employer to ignore an employee’s
age,” 507 U. S., at 612 (emphasis added), and noted that
“[w]hen the employer’s decision is wholly motivated by fac
tors other than age,” there is no violation, id., at 611 (empha
sis altered). So too, we indicated the “possibility of dual lia
bility under [the Employee Retirement Income Security Act
of 1974] and the ADEA where the decision to fire the
employee was motivated both by the employee’s age and by
his pension status,” id., at 613—a classic mixed-motives
scenario.
Moreover, both Hazen Paper Co. and Reeves v. Sanderson
Plumbing Products, Inc., 530 U. S. 133 (2000), on which the
majority also relies, support the conclusion that the ADEA
5 See Febres v. Challenger Caribbean Corp., 214 F. 3d 57 (CA1 2000);
Ostrowski v. Atlantic Mut. Ins. Cos., 968 F. 2d 171 (CA2 1992); Starceski
v. Westinghouse Elec. Corp., 54 F. 3d 1089 (CA3 1995); EEOC v.
Warfield-Rohr Casket Co., 364 F. 3d 160 (CA4 2004); Rachid v. Jack In
The Box, Inc., 376 F. 3d 305 (CA5 2004); Wexler v. White’s Fine Furniture,
Inc., 317 F. 3d 564 (CA6 2003); Visser v. Packer Eng. Assocs., Inc., 924
F. 2d 655 (CA7 1991) (en banc); Hutson v. McDonnell Douglas Corp.,
63 F. 3d 771 (CA8 1995); Lewis v. YMCA, 208 F. 3d 1303 (CA11 2000)
(per curiam); see also Gonzagowski v. Widnall, 115 F. 3d 744, 749 (CA10
1997).

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185 Cite as: 557 U. S. 167 (2009)
Stevens, J., dissenting
should be interpreted consistently with Title VII. In those
non-mixed-motives ADEA cases, the Court followed the
standards set forth in non-mixed-motives Title VII cases in
cluding McDonnell Douglas Corp. v. Green, 411 U. S. 792
(1973), and Texas Dept. of Community Affairs v. Burdine,
450 U. S. 248 (1981). See, e. g., Reeves, 530 U. S., at 141–143;
Hazen Paper Co., 507 U. S., at 610. This by no means indi
cates, as the majority reasons, that mixed-motives ADEA
cases should follow those standards. Rather, it underscores
that ADEA standards are generally understood to conform
to Title VII standards.
II
The conclusion that “because of ” an individual’s age means
that age was a motivating factor in an employment decision
is bolstered by Congress’ reaction to Price Waterhouse in
the 1991 Civil Rights Act. As part of its response to
“a number of recent decisions by the United States Supreme
Court that sharply cut back on the scope and effectiveness
of [civil rights] laws,” H. R. Rep. No. 102–40, pt. 2, p. 2 (1991)
(hereinafter H. R. Rep.), Congress eliminated the affirmative
defense to liability that Price Waterhouse had furnished em
ployers and provided instead that an employer’s same
decision showing would limit only a plaintiff ’s remedies.
See § 2000e–5(g)(2)(B). Importantly, however, Congress
ratified Price Waterhouse’s interpretation of the plaintiff ’s
burden of proof, rejecting the dissent’s suggestion in that
case that but-for causation was the proper standard. See
§ 2000e–2(m) (“[A]n unlawful employment practice is estab
lished 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”).
Because the 1991 Act amended only Title VII and not the
ADEA with respect to mixed-motives claims, the Court rea
sonably declines to apply the amended provisions to the

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186 GROSS v. FBL FINANCIAL SERVICES, INC.
Stevens, J., dissenting
ADEA.6 But it proceeds to ignore the conclusion compelled
by this interpretation of the Act: Price Waterhouse’s con
struction of “because of ” remains the governing law for
ADEA claims.
Our recent decision in Smith v. City of Jackson, 544 U. S.
228, 240 (2005), is precisely on point, as we considered in that
case the effect of Congress’ failure to amend the disparate
impact provisions of the ADEA when it amended the corre
sponding Title VII provisions in the 1991 Act. Noting that
“the relevant 1991 amendments expanded the coverage of
Title VII [but] did not amend the ADEA or speak to the
subject of age discrimination,” we held that “Wards Cove’s
pre-1991 interpretation of Title VII’s identical language re
mains applicable to the ADEA.” Ibid. (discussing Wards
Cove Packing Co. v. Atonio, 490 U. S. 642 (1989)); see also
Meacham v. Knolls Atomic Power Laboratory, 554 U. S. 84,
98 (2008). If the Wards Cove disparate-impact framework
that Congress flatly repudiated in the Title VII context con
tinues to apply to ADEA claims, the mixed-motives frame
work that Congress substantially endorsed surely applies.
Curiously, the Court reaches the opposite conclusion, rely
ing on Congress’ partial ratification of Price Waterhouse to
argue against that case’s precedential value. It reasons that
if the 1991 amendments do not apply to the ADEA, Price
Waterhouse likewise must not apply because Congress effec
tively codified Price Waterhouse’s holding in the amend
ments. Ante, at 173–175. This does not follow. To the
contrary, the fact that Congress endorsed this Court’s
6 There is, however, some evidence that Congress intended the 1991
mixed-motives amendments to apply to the ADEA as well. See H. R.
Rep., pt. 2, at 4 (noting that a “number of other laws banning discrimina
tion, including . . . the Age Discrimination in Employment Act (ADEA),
29 U. S. C. § 621, et seq., are modeled after and have been interpreted in a
manner consistent with Title VII,” and that “these other laws modeled
after Title VII [should] be interpreted consistently in a manner consistent
with Title VII as amended by this Act,” including the mixed-motives
provisions).

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187 Cite as: 557 U. S. 167 (2009)
Stevens, J., dissenting
interpretation of the “because of ” language in Price Water
house (even as it rejected the employer’s affirmative defense
to liability) provides all the more reason to adhere to that
decision’s motivating-factor test. Indeed, Congress empha
sized in passing the 1991 Act that the motivating-factor test
was consistent with its original intent in enacting Title VII.
See, e. g., H. R. Rep., pt. 2, at 17 (“When enacting the Civil
Rights Act of 1964, Congress made clear that it intended to
prohibit all invidious consideration of sex, race, color, reli
gion, or national origin in employment decisions” (emphasis
deleted)); id., at 2 (stating that the Act “reaffirm[ed] that
any reliance on prejudice in making employment decisions is
illegal”); see also H. R. Rep., pt. 1, at 45; S. Rep. No. 101–315,
pp. 6, 22 (1990).
The 1991 amendments to Title VII also provide the answer
to the majority’s argument that the mixed-motives approach
has proved unworkable. Ante, at 179. Because Congress
has codified a mixed-motives framework for Title VII
cases—the vast majority of antidiscrimination lawsuits—the
Court’s concerns about that framework are of no moment.
Were the Court truly worried about difficulties faced by trial
courts and juries, moreover, it would not reach today’s deci
sion, which will further complicate every case in which a
plaintiff raises both ADEA and Title VII claims.
The Court’s resurrection of the but-for causation standard
is unwarranted. Price Waterhouse repudiated that stand
ard 20 years ago, and Congress’ response to our decision fur
ther militates against the crabbed interpretation the Court
adopts today. The answer to the question the Court has
elected to take up—whether a mixed-motives jury instruc
tion is ever proper in an ADEA case—is plainly yes.
III
Although the Court declines to address the question we
granted certiorari to decide, I would answer that question
by following our unanimous opinion in Desert Palace, Inc. v.

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188 GROSS v. FBL FINANCIAL SERVICES, INC.
Stevens, J., dissenting
Costa, 539 U. S. 90 (2003). I would accordingly hold that a
plaintiff need not present direct evidence of age discrimina
tion to obtain a mixed-motives instruction.
The source of the direct-evidence debate is Justice O’Con
nor’s opinion concurring in the judgment in Price Water
house. Writing only for herself, Justice O’Connor argued
that a plaintiff should be required to introduce “direct evi
dence” that her sex motivated the decision before the plural
ity’s mixed-motives framework would apply. 490 U. S., at
276.7 Many courts have treated Justice O’Connor’s opinion
in Price Waterhouse as controlling for both Title VII and
ADEA mixed-motives cases in light of our statement in
Marks v. United States, 430 U. S. 188, 193 (1977), that
“[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five
Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds.’ ” Unlike the cases
Marks addressed, however, Price Waterhouse garnered five
votes for a single rationale: Justice White agreed with the
plurality as to the motivating-factor test, see supra, at 182,
n. 3; he disagreed only as to the type of evidence an employer
was required to submit to prove that the same result would
have occurred absent the unlawful motivation. Taking the
plurality to demand objective evidence, he wrote separately
to express his view that an employer’s credible testimony
could suffice. 490 U. S., at 261. Because Justice White pro
vided a fifth vote for the “rationale explaining the result” of
the Price Waterhouse decision, Marks, 430 U. S., at 193, his
concurrence is properly understood as controlling, and he,
7 While Justice O’Connor did not define precisely what she meant by
“direct evidence,” we contrasted such evidence with circumstantial evi
dence in Desert Palace, Inc. v. Costa, 539 U. S. 90 (2003). That Justice
O’Connor might have intended a different definition does not affect my
conclusion, as I do not believe a plaintiff is required to introduce any spe
cial type of evidence to obtain a mixed-motives instruction.

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Stevens, J., dissenting
like the plurality, did not require the introduction of direct
evidence.
Any questions raised by Price Waterhouse as to a direct
evidence requirement were settled by this Court’s unani
mous decision in Desert Palace, in which we held that a
plaintiff need not introduce direct evidence to meet her bur
den in a mixed-motives case under Title VII, as amended by
the Civil Rights Act of 1991. In construing the language of
§ 2000e–2(m), we reasoned that the statute did not mention,
much less require, a heightened showing through direct evi
dence and that “Congress has been unequivocal when impos
ing heightened proof requirements.” 539 U. S., at 99. The
statute’s silence with respect to direct evidence, we held,
meant that “we should not depart from the ‘[c]onventional
rul[e] of civil litigation . . . [that] requires a plaintiff to prove
his case by a preponderance of the evidence’, . . . using ‘direct
or circumstantial evidence.’ ” Ibid. (quoting Price Water
house, 490 U. S., at 253 (plurality opinion), and Postal Serv
ice Bd. of Governors v. Aikens, 460 U. S. 711 (1983)). We
also recognized the Court’s consistent acknowledgment of
the utility of circumstantial evidence in discrimination cases.
Our analysis in Desert Palace applies with equal force
to the ADEA. Cf. ante, at 178, n. 4. As with the 1991
amendments to Title VII, no language in the ADEA imposes
a heightened direct-evidence requirement, and we have spe
cifically recognized the utility of circumstantial evidence in
ADEA cases. See Reeves, 530 U. S., at 147 (cited by Desert
Palace, 539 U. S., at 99–100). Moreover, in Hazen Paper
Co., we held that an award of liquidated damages for a “will
ful” violation of the ADEA did not require proof of the em
ployer’s motivation through direct evidence, 507 U. S., at 615,
and we have similarly rejected the imposition of special evi
dentiary rules in other ADEA cases. See, e. g., Swierkie
wicz v. Sorema N. A., 534 U. S. 506 (2002); O’Connor v. Con
solidated Coin Caterers Corp., 517 U. S. 308 (1996). Desert
Palace thus confirms the answer provided by the plurality

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190 GROSS v. FBL FINANCIAL SERVICES, INC.
Breyer, J., dissenting
and Justice White in Price Waterhouse: An ADEA plaintiff
need not present direct evidence of discrimination to obtain
a mixed-motives instruction.
IV
The Court’s endorsement of a different construction of the
same critical language in the ADEA and Title VII is both
unwise and inconsistent with settled law. The but-for
standard the Court adopts was rejected by this Court in
Price Waterhouse and by Congress in the Civil Rights Act
of 1991. Yet today the Court resurrects the standard in
an unabashed display of judicial lawmaking. I respectfully
dissent.
Justice Breyer, with whom Justice Souter and Jus
tice Ginsburg join, dissenting.
I agree with Justice Stevens that mixed-motive instruc
tions are appropriate in the Age Discrimination in Employ
ment Act of 1967 context. And I join his opinion. The
Court rejects this conclusion on the ground that the words
“because of ” require a plaintiff to prove that age was the
“but-for” cause of his employer’s adverse employment action.
Ante, at 176–177. But the majority does not explain why
this is so. The words “because of ” do not inherently require
a showing of “but-for” causation, and I see no reason to read
them to require such a showing.
It is one thing to require a typical tort plaintiff to show
“but-for” causation. In that context, reasonably objective
scientific or commonsense theories of physical causation
make the concept of “but-for” causation comparatively easy
to understand and relatively easy to apply. But it is an en
tirely different matter to determine a “but-for” relation
when we consider, not physical forces, but the mind-related
characterizations that constitute motive. Sometimes we
speak of determining or discovering motives, but more often
we ascribe motives, after an event, to an individual in light

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191 Cite as: 557 U. S. 167 (2009)
Breyer, J., dissenting
of the individual’s thoughts and other circumstances present
at the time of decision. In a case where we characterize
an employer’s actions as having been taken out of multiple
motives, say, both because the employee was old and because
he wore loud clothing, to apply “but-for” causation is to en
gage in a hypothetical inquiry about what would have hap
pened if the employer’s thoughts and other circumstances
had been different. The answer to this hypothetical inquiry
will often be far from obvious, and, since the employee likely
knows less than does the employer about what the employer
was thinking at the time, the employer will often be in a
stronger position than the employee to provide the answer.
All that a plaintiff can know for certain in such a context
is that the forbidden motive did play a role in the employer’s
decision. And the fact that a jury has found that age did
play a role in the decision justifies the use of the word “be
cause,” i. e., the employer dismissed the employee because
of his age (and other things). See Price Waterhouse v.
Hopkins, 490 U. S. 228, 239–242 (1989) (plurality opinion).
I therefore would see nothing wrong in concluding that the
plaintiff has established a violation of the statute.
But the law need not automatically assess liability in these
circumstances. In Price Waterhouse, the plurality recog
nized an affirmative defense where the defendant could show
that the employee would have been dismissed regardless.
The law permits the employer this defense, not because the
forbidden motive, age, had no role in the actual decision, but
because the employer can show that he would have dismissed
the employee anyway in the hypothetical circumstance in
which his age-related motive was absent. And it makes
sense that this would be an affirmative defense, rather than
part of the showing of a violation, precisely because the de
fendant is in a better position than the plaintiff to establish
how he would have acted in this hypothetical situation. See
id., at 242; cf. ante, at 185 (Stevens, J., dissenting) (describing

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192 GROSS v. FBL FINANCIAL SERVICES, INC.
Breyer, J., dissenting
the Title VII framework). I can see nothing unfair or im
practical about allocating the burdens of proof in this way.
The instruction that the District Court gave seems appro
priate and lawful. It says, in pertinent part:
“Your verdict must be for plaintiff if all the following
elements have been proved by the preponderance of
the evidence:
. . . . .
“[The] plaintiff ’s age was a motivating factor in defend
ant’s decision to demote plaintiff.
“However, your verdict must be for defendant . . . if
it has been proved by the preponderance of the evidence
that defendant would have demoted plaintiff regardless
of his age.
. . . . .
“As used in these instructions, plaintiff ’s age was ‘a
motivating factor,’ if plaintiff ’s age played a part or a
role in the defendant’s decision to demote plaintiff.
However, plaintiff ’s age need not have been the only rea
son for defendant’s decision to demote plaintiff.” App.
9–10.
For these reasons as well as for those set forth by Justice
Stevens, I respectfully dissent.