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 discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below.
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 position of claims project coordinator. At that same time, FBL transferred many of Gross' job responsibilities to a newly created position — claims administration manager. That position was given to Lisa Kneeskern,
In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the 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). 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 District 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 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 "verdict must be for [FBL] ... if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age." Ibid. The jury returned 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 reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). See 526 F.3d 356, 358 (2008). In Price Waterhouse, this Court addressed the proper allocation of the burden of persuasion 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 impermissible considerations — i.e., a "mixed-motives" case. 490 U.S., at 232, 244-247, 109 S.Ct. 1775 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion, see id., at 231-258, 109 S.Ct. 1775, Justices White and O'Connor separately concurred in the judgment, see id., at 258-261, 109 S.Ct. 1775 (opinion of White, J.); id., at 261-279, 109 S.Ct. 1775 (opinion of O'Connor, J.), and three Justices dissented, see id., at 279-295, 109 S.Ct. 1775 (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 burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. See id., at 258, 109 S.Ct. 1775 (plurality opinion); id., at 259-260, 109 S.Ct. 1775 (opinion of White, J.); id., at 276, 109 S.Ct. 1775 (opinion 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." Id., at 276, 109 S.Ct. 1775.
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 preponderance 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 only to determine whether Gross had carried his burden of "prov[ing] that age was the determining factor in FBL's employment action." See ibid.
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 discrimination 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.
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.
This Court has never held that this burden-shifting framework 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, 128 S.Ct. 1147, 1153, 170 L.Ed.2d 10 (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. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 256, 111 S.Ct. 1227, 113 L.Ed.2d 274 (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, 117 S.Ct. 2059, 138 L.Ed.2d 481 (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.
Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. "Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004) (internal quotation marks omitted). The ADEA provides, in relevant part, 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).
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) (defining "because of" to mean "By 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 employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (explaining that the claim "cannot succeed 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 language of the ADEA, therefore, 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, 652-655, 128 S.Ct. 2131, 2141-2142, 170 L.Ed.2d 1012 (2008) (recognizing that the phrase, "by reason of," requires at least a showing of "but for" causation (internal quotation marks omitted)); Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63-64, and n. 14, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (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) ("An act or omission is not regarded as a cause of an event if the particular event would have occurred without it").
Hence, the burden of persuasion necessary to establish employer 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 be direct or circumstantial), that age was the "but-for" cause of the challenged employer decision. See Reeves, supra, at 141-143, 147, 120 S.Ct. 2097.
Finally, we reject petitioner's contention that our interpretation of the ADEA is controlled by Price Waterhouse, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims.
Whatever the deficiencies of Price Waterhouse in retrospect, 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 explain its burden-shifting framework. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1179 (C.A.2 1992) (referring to "the murky water of shifting burdens in discrimination cases"); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 661 (C.A.7 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 verdict or reversed on appeal more frequently than jury verdicts generally"). Thus, even if Price Waterhouse was doctrinally sound, 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, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (reevaluating precedent that was subject to criticism and "continuing controversy and confusion"); Payne v. Tennessee, 501 U.S. 808, 839-844, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (SOUTER, J., concurring).
We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA 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. 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
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.
Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard of our precedent 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,
In Price Waterhouse, we concluded that the words "`because of' such individual's... sex ... mean that gender must be irrelevant to employment decisions." 490 U.S., at 240, 109 S.Ct. 1775 (plurality opinion); see also id., at 260, 109 S.Ct. 1775 (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.
Today, however, the Court interprets the words "because of" in the ADEA "as colloquial shorthand for `but-for' causation." 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 interpretations 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, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (quoting Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978)). See generally Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam). For this reason, Justice KENNEDY's dissent in Price Waterhouse assumed the plurality's mixed-motives framework extended to the ADEA, see 490 U.S., at 292, 109 S.Ct. 1775, and the Courts of Appeals to have
The Court nonetheless suggests that applying Price Waterhouse 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, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), that "[a disparate-treatment] claim `cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Ante, at 2350. The italicized phrase is at best inconclusive as to the meaning of the ADEA's "because 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," id., at 612, 113 S.Ct. 1701 (emphasis added), and noted that "[w]hen the employer's decision is wholly motivated by factors other than age," there is no violation, id., at 611 (emphasis altered). So too, we indicated the "possibility of dual liability under ERISA 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, 113 S.Ct. 1701 — a classic mixed-motives scenario.
Moreover, both Hazen Paper Co. and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), on which the majority also relies, support the conclusion that the ADEA 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 including McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See, e.g., Reeves, 530 U.S., at 141-143, 120 S.Ct. 2097; Hazen Paper Co., 507 U.S., at 610, 113 S.Ct. 1701. This by no means indicates, 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.
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), U.S.Code Cong. & Admin.News 1991, p. 694 (hereinafter H.R. Rep.), Congress eliminated the affirmative defense to liability that Price Waterhouse had furnished employers 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
Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the ADEA.
Our recent decision in Smith v. City of Jackson, 544 U.S. 228, 240, 125 S.Ct. 1536, 161 L.Ed.2d 410 (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 corresponding 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 remains applicable to the ADEA." 544 U.S., at 240, 125 S.Ct. 1536 (discussing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989)); see also Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84, 99-102, 128 S.Ct. 2395, 2405-2406, 171 L.Ed.2d 283 (2008). If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies.
Curiously, the Court reaches the opposite conclusion, relying 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 effectively codified Price Waterhouse's holding in the amendments. Ante, at 2348-2349. This does not follow. To the contrary, the fact that Congress endorsed this Court's interpretation of the "because of" language in Price Waterhouse (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 emphasized 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, religion, or national origin in employment decisions"); 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 2351-2352. Because Congress has codified a mixed-motives
The Court's resurrection of the but-for causation standard is unwarranted. Price Waterhouse repudiated that standard 20 years ago, and Congress' response to our decision further 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 instruction is ever proper in an ADEA case — is plainly yes.
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. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). I would accordingly hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction.
The source of the direct-evidence debate is Justice O'Connor's opinion concurring in the judgment in Price Waterhouse. Writing only for herself, Justice O'Connor argued that a plaintiff should be required to introduce "direct evidence" that her sex motivated the decision before the plurality's mixed-motives framework would apply. 490 U.S., at 276, 109 S.Ct. 1775.
Any questions raised by Price Waterhouse as to a direct evidence requirement were settled by this Court's unanimous decision in Desert Palace, in which we held that a plaintiff need not introduce direct evidence to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing
Our analysis in Desert Palace applies with equal force to the ADEA. Cf. ante, at 2351-2352, n. 4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct evidence requirement, and we have specifically recognized the utility of circumstantial evidence in ADEA cases. See Reeves, 530 U.S., at 147, 120 S.Ct. 2097 (cited by Desert Palace, 539 U.S., at 99-100, 123 S.Ct. 2148). Moreover, in Hazen Paper Co., we held that an award of liquidated damages for a "willful" violation of the ADEA did not require proof of the employer's motivation through direct evidence, 507 U.S., at 615, 113 S.Ct. 1701, and we have similarly rejected the imposition of special evidentiary rules in other ADEA cases. See, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). Desert Palace thus confirms the answer provided by the plurality and Justice White in Price Waterhouse: An ADEA plaintiff need not present direct evidence of discrimination to obtain a mixed-motives instruction.
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 Justice GINSBURG join, dissenting.
I agree with Justice STEVENS that mixed-motive instructions are appropriate in the Age Discrimination in Employment Act 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 2350. 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 entirely 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
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 "because," 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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (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 recognized 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 defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation. See id., at 242, 109 S.Ct. 1775; cf. ante, at 2356 (STEVENS, J., dissenting) (describing the Title VII framework). I can see nothing unfair or impractical about allocating the burdens of proof in this way.
The instruction that the District Court gave seems appropriate and lawful. It says, in pertinent part:
For these reasons as well as for those set forth by Justice STEVENS, I respectfully dissent.