14th Amendment Equal Protection Discrimination Analysis

14th Amendment Equal Protection: Discrimination
Various Criteria:
Basic assumption that government acted lawfully: victim has
burden of proof, common law
- “simple rationality test”
- typical merit requirements
“Suspect classifications”: race, alien status, religion brings
“strict scrutiny”: government must have at least a “compelling
interest”: constitutional law
Middle ground: reasonableness: gender, age, minor interests,
disabilities: statutory law
- Lily Ledbetter Fair Pay Act of 2009: pay discrimination due to
gender can be contested long after initial pay decision was made
if lower pay is ongoing
1
Public Employment: Equal protection
de jure v. de facto discrimination
2
Evolving race criteria:
Adarand v. Pena (1995): compelling interest needed for

affirmative action. Narrowly tailored remedy expected
Ricci v. DeStefano (2009): City of New Haven violated Title
VII by refusing to certify test results when no black firefighters
passed. Cannot reject open fair process solely on disparate
results
Comcast v. National Association of African-American Owned
Media(2020) : “But for cause”:
3
Equal Protection in College admission indicates court’s
continual evolution:
Schuette v. Coalition to Defend Affirmative Action (2014)
States can ban consideration of race in college admissions or
other public programs
But already the court had banned any form of affirmative action
that created any sort of quotas or operated mechanically.
Fisher v. University of Texas at Austin(2016): left basic law
race-based preferences inherently suspect but legal if schools --
and by extension, employers -- provide strong evidence their
affirmative-action programs are narrowly tailored to achieve the
goal of diversity.
4
Recent notable movement on discrimination(not administrative

law)
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC
(2012)
Courts cannot tell religious organizations who can they can fire
as ministers: “ministerial exception”
In hiring and firing of Sunday school teacher, first amendment
trumps employment laws
The Hobby Lobby case (2014): cannot require private
employees to provide birth control
5
Public Employment: Equal protection: Gender
Title VI of 1964 Civil Rights Act: forbids discrimination based
on race, sex, religion, and national origin
Title VII: applies Title VI to state and local governments
- Retirement programs cannot discriminate
6
Feeney v. Personnel Administrator of Massachusetts (1979)
- veteran’s preference challenge – public interest in rewarding
veterans outweighed gender impact

Supreme Court has struck down discrimination of gays/lesbians
if there was no public purpose
United States v. Windsor (2013) : Federal Defense of Marriage
Act overturned
7
Employment: Equal protection: Gender
Harassment: Harris v. Forklift Systems (1993): “hostile
environment” may constitute discrimination
Pennsylvania State Police v. Suders (2004): were conditions so
intolerable that reasonable person would feel forced to quit?
“Conditional discharge” could constitute a employer action that
qualifies for Title VII standing
8
Nevada Department of Human Resources v. Hibbs (2003) -
Rehnquist, 6-3
State must allow mothers and fathers to take leave under the
Family and Medical Leave Act
Documented history of workplace sex discrimination
9
Public Employment: Equal protection: Age
Age discrimination in Employment Act (1967)

Kimel v. Florida Board of Regents (2000): states immune from
suits in federal courts, except in special case of court
participants
11th Amendment
- burden on private or non-federal gov’t employee to prove
firing based primarily on age: JACK GROSS, PETITIONER v.
FBL FINANCIAL SERVICES, INC. (2009)
complicated in cutbacks, contracting
Babb v. Wilkie (2020): Federal employees simply need to show
discrimination was present, not standard of “but for”
10
Public Employment: Equal protection: Disabilities
Americans With Disabilities Act (1990)
- protects broadly, over 43 millions possibly protected
- employers must make “reasonable accommodations”, but can
avoid actions that entail “undue hardship”
- falls under Kimel rule for state governments: Alabama v.
Garrett (2001)
11
The NCSL (National Conference of State Legislatures)Blog
“SCOTUS: Race Must Be 'But For' Cause in Employment
Discrimination Suits
By Lisa Soronen
In Comcast v. National Association of African-American Owned
Media the U.S. Supreme Court held unanimously that a plaintiff

who sues under 42 U.S.C. §1981 must plead and prove that race
was the but-for cause of his or her injury. This case is
particularly relevant to states and local governments as
employers. The but-for causation is a standard favorable to
employers.
Section 1981, enacted in 1866, prohibits discrimination on the
basis of race in contracting and employment, among other
things. It states “[a]ll persons within the jurisdiction of the
United States shall have the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens.”
This case arose in the contracting context. African American
entrepreneur Byron Allen, owner of Entertainment Studios
Network (ESN), sought to have Comcast carry its channels.
Comcast refused and ESN sued under §1981. ESN didn’t dispute
that Comcast offered legitimate business reasons for not
carryings its channels, but claimed these reasons were
pretextual.
The 9th Circuit held that a §1981 plaintiff only has to show that
race discrimination played “some role” in the defendant’s
decision-making process, not that it was the “but-for” cause of
the defendant’s conduct. Under this “more forgiving” causation
standard, ESN’s lawsuit could proceed.
The Supreme Court rejected the 9th Circuit’s view and held that
to win a §1981 case the plaintiff must plead and prove but-for
causation. Justice Neil Gorsuch, writing for the court, noted that
it is “textbook tort law” that plaintiffs must prove but-for
causation. The court rejected ESN’s argument that §1981
creates an exception to the general rule.
According to the court: “While the statute’s text does not
expressly discuss causation, it is suggestive. The guarantee that
each person is entitled to the ‘same right . . . as is enjoyed by
white citizens’ directs our attention to the counterfactual —what
would have happened if the plaintiff had been white? This focus
fits naturally with the ordinary rule that a plaintiff must prove
but-for causation.”

ESN encouraged the court to adopt the “motivating factor”
causation test from Title VII, which also prohibits race
discrimination in employment. This standard is more favorable
to employees than the but-for causation standard. The court
declined, noting the differences between the statutes. “Title VII
was enacted in 1964; this court recognized its motivating factor
test in 1989; and Congress replaced that rule with its own
version two years later. Meanwhile, §1981 dates back to 1866
and has never said a word about motivating factors. So we have
two statutes with two distinct histories, and not a shred of
evidence that Congress meant them to incorporate the same
causation standard.”
Justice Ruth Bader Ginsburg wrote a concurring opinion noting
that the court didn’t decide whether §1981 applies to earlier
stages of the contract-formation process because this question
wasn’t presented in this case. She stated that it must apply,
otherwise, employers could, for example, reimburse white
interviewees but not black interviewees or even refuse to
consider black applicants.
States and local governments, like private employers, can be
sued for employment discrimination under Section 1981. The
9th Circuit decision had numerous downsides for employers.
First, it is easier for employees to prove that discrimination was
one of a number of factors in an employment decision rather
than the sole factor.
Second, if the Supreme Court had agreed with the 9th Circuit,
Section 1981 will be an even more attractive vehicle to sue
employers. Compared to Title VII, it has a longer statute of
limitations, no damages cap, and presumably no defense to
damages where the employer would have made the same
decision regardless of race.
Lisa Soronen is executive director of the State and Local Legal
Center and a regular contributor to the NCSL Blog on judicial
issues.
_____________________________________________________

____
Babb v. Wilkie (2020)
Supreme Court ruling will make it easier for feds to prove age
discrimination
By Nicole Ogrysko | @nogryskoWFED
April 7, 2020 4:38 pm
Federal News Network
https://federalnewsnetwork.com/workforce-
rightsgovernance/2020/04/supreme-court-ruling-will-make-it-
easier-for-feds-to-prove-age-discrimination/
Federal employees may have an easier time proving age
discrimination, thanks to a new ruling from the Supreme Court.
In an 8-1 ruling, the Supreme Court on Monday said federal
employees have a lower burden to prove differential treatment
under the Age Discrimination in Employment Act (ADEA)
compared to their counterparts in the private sector and state
and local governments.
The ADEA protects certain employees and job applicants who
are 40 years and older from age-based discrimination in hiring,
firing, promotion or demotion and other conditions of
employment.
The case before the Supreme Court came from Norris Babb, a
clinical pharmacist at the Department Veterans Affairs who had
sued the agency back in 2014. Babb said she was denied a
promotion, holiday pay and training and development
opportunities, in part, because of her age.
According to the VA’s arguments, Babb could only obtain relief
under the ADEA if her age was a “but-for cause” of the
personnel action, meaning she’d have to prove she would have
otherwise received the promotion or training if her age wasn’t
taken into account.
“This interpretation, the government contends, follows both
from the meaning of the statutory text and from the ‘default
rule’ that we have recognized in other employment
discrimination cases, namely, that recovery for wrongful

conduct is generally permitted only if the injury would not have
occurred but for that conduct,” Justice Samuel Alito, who
delivered the court’s opinion, said in Monday’s ruling.
Babb, however, argued the ADEA prevents an agency from
using age at any point during the personnel decision-making
process.
The court debated the correct interpretation and came to a
relatively easy decision. Under the ADEA, the court said,
federal employees need not prove age as a “but-for cause” for a
personnel action itself. Instead, they must simply prove they
received differential treatment due to their age during the
personnel decision-making process.
“The statute does not say that ‘it is unlawful to take personnel
actions that are based on age;” it says that ‘personnel actions…
shall be made free from any discrimination based on age,'” the
court’s opinion reads. “As a result, age must be a but-for cause
of discrimination — that is, of differential treatment — but not
necessarily a but-for cause of a personnel action itself,”
Put another way, the court contends federal employees must
prove their age was the reason for differential treatment that led
to a personnel action, but not the reason for the firing,
suspension, promotion or decision itself.
Alito uses an example to illustrate the argument, where an
agency must decide whether to promote 35-year-old “employee
A,” or 55-year-old “employee B.” Under a hypothetical policy,
an agency will first rank these two employees up for promotion
using a numerical score based on non-discriminatory factors.
Using these factors, “employee A” receives a score of 90, while
“employee B” earns a score of 85. Next, the agency will dock
five points from employees over the age of 40 and will give the
promotion to the employee with the most points.
Under this hypothetical scenario, “employee B,” the 55-year-
old, has a final score of 80, while “employee A,” the 35-year-
old, has a score of 90. “Employee A,” gets the promotion.
“This decision is not ‘made’ ‘free from any discrimination’
because employee B was treated differently (and less favorably)

than employee A (because she was docked five points and A
was not),” Alito said. “And this discrimination was ‘based on
age’ because the five points would not have been taken away
were it not for employee B’s age.”
“Employee A” would have won the promotion even if the
agency hadn’t considered the ages of both workers and hadn’t
docked points from the older employee’s score, Alito
acknowledged. But the agency still claims liability under the
ADEA, the court argued.
The ADEA, which Congress passed into law in 1967, originally
applied only to private sector employees. Congress expanded
the law’s scope back in 1974 to cover, state, local and federal
governments.
Lawmakers at the time simply added state and local government
to the definition describing an “employer” under the ADEA. But
Congress, however, added separate language outlining a distinct
statutory scheme for the federal sector, a point that the Supreme
Court said is notable.
“We are not persuaded by the argument that it is anomalous to
hold the federal government to a stricter standard than private
employers or state and local governments,” Alito said. “That is
what the statutory language dictates, and if Congress had
wanted to impose the same standard on all employers, it could
have easily done so.”
This ADEA language ultimately gives federal employees a
lower burden of proof in age discrimination cases compared to
their private sector counterparts. The ADEA, however, does set
tougher standards for federal employees seeking reinstatement,
back pay, damages or some other relief related to a firing,
demotion, suspension or other personnel action. These
employees must, in fact, show age discrimination was a “but-for
cause” of the personnel action, the court said.
“Plaintiffs are not without a remedy if they show that age was a
but-for cause of differential treatment in an employment
decision but not a but-for cause of the decision itself. In that
situation, plaintiffs can seek injunctive or other forward-looking

relief,” Alito said.
Only Justice Clarence Thomas, who said he interpreted the
ADEA language differently, disagreed with the court’s opinion.
Simply requiring federal employees to prove age discrimination
“taint[ed] the making of a personnel action, even if the agency
would have reached the same outcome absent any age-based
discrimination,” is an “unworkable” rule, he argued.
Essays should be 4-6 double-spaced pages. They should be
written using only lectures and reading materials provided on
Moodle. Identify the sources for specific facts, concepts, and
quotes by simple parenthetical references. Since you are only to
use class materials, the instructor should easily be able to
identify the source.
For the essays, you cannot “cut and paste”. Use the materials
from class only and be sure to provide a simple reference, such
as (Powerpoint) or (Library of Congress).
Answer all parts of the chosen question. Demonstrate that you
have reviewed and understand any relevant information in that
section’s materials.
When useful to the answer, incorporate details such as case
names, author’s names, facts, and particularly specific terms or
jargon important to that subject.
The essays should be thematic. Sentences should be complete.
Always address each part of the question. Always include
specific details, terms, and cases that properly fit into the
analysis.
Congratulations for starting your new job in Human Resources

today here at Western Oregon University! We are all glad to
have you on board because of your special knowledge of the law
of public employment. The president, Dr. Wanda Allover, has a
back log of issues she hopes you will help her resolve.
Her is her list. She is looking forward to getting your
information and advice by May 27.
1. We need to be more discriminating. We want the “right sort
of people”. The president likes “bright, well-prepared, energetic
people who are comfortable to be with and who project the
image of an vibrant mainstream organization.”
Please explain to the Dr. Allover the way the courts view “equal
protection” and what is allowable employment discrimination.
In what situation (or based on what characteristics) can you
most easily discriminate and in what circumstances is
discrimination most difficult to legally justify? (What tests
apply to discrimination based on different personal traits, such
as “strict scrutiny”.)
What grounds are between the two extremes?
2. Western Oregon has some problem employees we really want
to dump. Some are long-term administrative staff, some are
troublesome unionized faculty, and there is this really new
person who seems “uppity”.
Can these folks ever be fired? If we can fire them, how can we
do it legally?
3. President Allover is a person with curiosity. She also wants
to know what you think is the single best thing about the broad
public employments system, and what you think is the worst
thing about it.
PENNSYLVANIA STATE POLICE V. SUDERS (03-95) 542
U.S. 129 (2004)
325 F.3d 432, vacated and remanded.
Syllabus

Opinion
[ Ginsburg ]
Dissent
[ Thomas ]
HTML versionPDF version
Syllabus : PENNSYLVANIA STATE POLICE v.
SUDERSCERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03—95. Argued March 31, 2004–Decided June 14, 2004
In March 1998, the Pennsylvania State Police (PSP) hired
plaintiff-respondent Suders to work as a police communications
operator for the McConnellsburg barracks, where her male
supervisors subjected her to a continuous barrage of sexual
harassment. In June 1998, Suders told the PSP’s Equal
Employment Opportunity Officer, Virginia Smith-Elliott, that
she might need help, but neither woman followed up on the
conversation. Two months later, Suders contacted Smith-Elliott
again, this time reporting that she was being harassed and was
afraid. Smith-Elliott told Suders to file a complaint, but did not
tell her how to obtain the necessary form. Two days later,
Suders’ supervisors arrested her for theft of her own computer -
skills exam papers. Suders had removed the papers after
concluding that the supervisors had falsely reported that she had
repeatedly failed, when in fact, the exams were never forwarded
for grading. Suders then resigned from the force and sued the
PSP, alleging, inter alia, that she had been subjected to sexual
harassment and constructively discharged, in violation of Title
VII of the Civil Rights Act of 1964.

The District Court granted the PSP’s motion for summary
judgment. Although recognizing that Suders’ testimony would
permit a fact trier to conclude that her supervisors had created a
hostile work environment, the court nevertheless held that the
PSP was not vicariously liable for the supervisors’ conduct. In
support of its decision, the District Court referred to Faragher v.
Boca Raton,524 U.S. 775, 808. In that case, and in Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, decided the same day,
this Court held that an employer is strictly liable for supervisor
harassment that “culminates in a tangible employment action,
such as discharge, demotion, or undesirable reassignment.” 524
U.S., at 765. But when no such tangible action is taken, both
decisions also hold, the employer may raise an affirmative
defense to liability. To prevail on the basis of the defense, the
employer must prove that “(a) [it] exercised reasonable care to
prevent and correct promptly any sexually harassing behavior,”
and that (b) the employee “unreasonably failed to take
advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.” Ibid.
Suders’ hostile work environment claim was untenable as a
matter of law, the District Court stated, because she
unreasonably failed to avail herself of the PSP’s internal
antiharassment procedures. The court did not address Suders’
constructive discharge claim.
The Third Circuit reversed and remanded the case for trial.
The appeals court disagreed with the District Court in two key
respects: First, even if the PSP could assert the Ellerth/Faragher
affirmative defense, genuine issues of material fact existed
about the effectiveness of the PSP’s program to address sexual
harassment claims; second, Suders had stated a claim of
constructive discharge due to hostile work environment. The
appeals court ruled that a constructive discharge, if proved,
constitutes a tangible employment action that renders an
employer strictly liable and precludes recourse to the
Ellerth/Faragher affirmative defense.

Held: To establish “constructive discharge,” a plaintiff alleging
sexual harassment must show that the abusive working
environment became so intolerable that her resignation qualified
as a fitting response. An employer may assert the
Ellerth/Faragher affirmative defense to such a claim unless the
plaintiff quit in reasonable response to an adverse acti on
officially changing her employment status or situation, e.g., a
humiliating demotion, extreme cut in pay, or transfer to a
position in which she would face unbearable working
conditions. Pp. 9—21.
(a) Under the constructive discharge doctrine, an employee’s
reasonable decision to resign because of unendurable working
conditions is assimilated to a formal discharge for remedial
purposes. The inquiry is objective: Did working conditions
become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign? This
doctrine was developed by the National Labor Relations Board
(NLRB) in the 1930’s, and was solidly established in the lower
federal courts by 1964, when Title VII was enacted. The Court
agrees that Title VII encompasses employer liability for a
constructive discharge. Pp. 9—11.
(b) This case concerns employer liability for one subset of
constructive discharge claims: those resulting from sexual
harassment, or “hostile work environment,” attributable to a
supervisor. The Court’s starting point is the Ellerth/Faragher
framework. Those decisions delineate two categories of sexual
harassment claims: (1) those alleging a “tangible employment
action,” for which employers may be held strictly liable; and (2)
those asserting no tangible employment action, in which case
employers may assert the affirmative defense. Ellerth, 524 U.S.,
at 765. The key issues here are: Into which Ellerth/Faragher
category hostile-environment constructive discharge claims fall,
and what proof burdens the parties bear in such cases. In Ellerth

and Faragher, the Court invoked the principle drawn from
agency law that an employer is liable for the acts of its agent
when the agent is “aided in accomplishing the tort by the
existence of the agency relation.” Id., at 758. When a supervisor
engaged in harassing conduct takes a tangible employment
action against a subordinate, the Court reasoned, it is beyond
question that the supervisor is aided by the agency relation. A
tangible employment action, the Court stated, is an “official act
of the enterprise” and “fall[s] within the special province of the
supervisor.” Id., at 762. In contrast, when supervisor harassment
does not culminate in a tangible employment action, Ellerth and
Faragher explained, it is less obvious that the agency relation is
the driving force. The Court also recognized that a liability
limitation linked to an employer’s effort to install effective
grievance procedures and an employee’s effort to report
harassing behavior would advance Title VII’s conciliation and
deterrence purposes. Id., at 764. Accordingly, the Court held
that when no tangible employment action is taken, an employer
may defeat vicarious liability for supervisor harassment by
establishing the two-part affirmative defense. That defense, the
Court observed, accommodates the “avoidable consequences”
doctrine Title VII “borrows from tort law,” ibid., by requiring
plaintiffs reasonably to stave off avoidable harm. Ellerth and
Faragher clarify, however, that the defending employer bears
the burden to prove that the plaintiff-employee unreasonably
failed to avoid or reduce harm. Faragher, at 807. Pp. 11—15.
(1) The constructive discharge at issue stems from, and
can be regarded as an aggravated case of, sexual harassment or
hostile work environment. For an atmosphere of harassment or
hostility to be actionable, the offending behavior must be
sufficiently severe or pervasive to alter the victim’s
employment conditions and create an abusive working
environment. Meritor Savings Bank, FSB v. Vinson,477 U.S.
57, 67. A hostile-environment constructive discharge claim
entails something more: working conditions so intolerable that a

reasonable person would have felt compelled to resign. Suders’
claim is of the same genre as the claims analyzed in Ellerth and
Faragher. Essentially, Suders presents a “worse case”
harassment scenario, harassment ratcheted up to the breaking
point. Like the harassment considered in Ellerth and Faragher,
harassment so intolerable as to cause a resignation may be
effected through co-worker conduct, unofficial supervisory
conduct, or official company acts. Unlike an actual termination,
which is always effected through an official company act, a
constructive discharge may or may not involve official action.
When it does not, the extent to which the agency relationship
aided the supervisor’s misconduct is less certain, and that
uncertainty justifies affording the employer the chance to
establish, through the Ellerth/Faragher affirmative defense, that
it should not be held vicariously liable. The Third Circuit erred
in drawing the line differently. Pp. 15—19.
(2) The Third Circuit qualified its holding that a
constructive discharge itself constitutes a tangible employment
action under Ellerth and Faragher: The affirmative defense
delineated in those cases, the court noted, might be imported
into the anterior issue whether the employee’s decision to resign
was reasonable under the circumstances. However, the appeals
court left open when and how the Ellerth/Faragher
considerations would be brought home to the fact trier. The
Court of Appeals did not address specifically the allocation of
pleading and persuasion burdens, but simply relied on “the
wisdom and expertise of trial judges to exercise their
gatekeeping authority when assessing whether all, some, or
none of the evidence relating to employers’ antiharassment
programs and to employees’ exploration of alternative avenues
warrants introduction at trial.” 325 F.3d, at 463. There is no
cause for leaving the district courts thus unguided. Following
Ellerth and Faragher, the plaintiff who alleges no tangible
employment action has the duty to mitigate harm, but the
defendant bears the burden to allege and prove that the plaintiff

failed in that regard. Pp. 19—21.
(c) Although the Third Circuit correctly ruled that the case,
in its current posture, presents genuine issues of material fact
concerning Suders’ hostile work environment and constructive
discharge claims, that court erred in declaring the affirmative
defense described in Ellerth and Faragher never available in
constructive discharge cases. P. 21.
325 F.3d 432, vacated and remanded.
Ginsburg, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and Stevens, O’Connor, Scalia, Kennedy,
Souter, and Breyer, JJ., joined. Thomas, J., filed a dissenting
opinion.
Excerpts from Majority Opinion by Justice Ginsburg:
“…. To establish hostile work environment, plaintiffs like
Suders must show harassing behavior “sufficientl y severe or
pervasive to alter the conditions of [their] employment.”
Meritor Savings Bank, FSB v. Vinson,477 U.S. 57, 67 (1986)
(internal quotation marks omitted); see Harris v. Forklift
Systems, Inc.,510 U.S. 17, 22 (1993)
….
Although this Court has not had occasion earlier to hold that
a claim for constructive discharge lies under Title VII, we have
recognized constructive discharge in the labor-law context, see
Sure&nbhyph;Tan, Inc. v. NLRB,467 U.S. 883, 894 (1984)
(NLRB may find employer engaged in unfair labor practice
“when, for the purpose of discouraging union activity, … [the
employer] creates working conditions so intolerable that the
employee has no option but to resign–a so-called ‘constructive
discharge.’ ”). Furthermore, we have stated that “Title VII is
violated by either explicit or constructive alterations in the

terms or conditions of employment.” Ellerth, 524 U.S., at 752.
See also Meritor Savings Bank, FSB v. Vinson, 477 U.S., at 64
(“The phrase ‘terms, conditions, or privileges of employment’
[in Title VII] evinces a congressional intent to strike at the
entire spectrum of disparate treatment of men and women in
employment.” (some internal quotation marks omitted)). We
agree with the lower courts and the EEOC that Title VII
encompasses employer liability for a constructive discharge.
….
The constructive discharge here at issue stems from, and can
be regarded as an aggravated case of, sexual harassment or
hostile work environment. For an atmosphere of sexual
harassment or hostility to be actionable, we reiterate, see supra,
at 1, the offending behavior “must be sufficiently severe or
pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Meritor, 477 U.S., at
67 (internal quotation marks and brackets omitted). A hostile-
environment constructive discharge claim entails something
more: A plaintiff who advances such a compound claim must
show working conditions so intolerable that a reasonable person
would have felt compelled to resign. See, e.g.,Breeding v.
Arthur J. Gallagher & Co., 164 F.3d 1151, 1160 (CA8 1999)
(“[A]lthough there may be evidence from which a jury could
find sexual harassment, … the facts alleged [for constructive
discharge must be] … so intolerable that a reasonable person
would be forced to quit.”); Perry v. HarrisChernin, Inc., 126
F.3d 1010, 1015 (CA7 1997) (“[U]nless conditions are beyond
‘ordinary’ discrimination, a complaining employee is expected
to remain on the job while seeking redress.”).8….”
PAGE
1
Supreme Court Deals Blow To Government Unions
National Public Broadcasting

(June 27, 2018)
Scott Horsely and Nina Totenberg
In a blow to organized labor, the U.S. Supreme Court ruled
Wednesday that government workers who choose not to join a
union cannot be charged for the cost of collective bargaining.
The vote was a predictable 5-4. Justice Samuel Alito wrote the
majority opinion with the court's conservatives joining him.
"Under Illinois law, public employees are forced to subsidize a
union, even if they choose not to join and strongly object to the
positions the union takes in collective bargaining and related
activities," Alito wrote. "We conclude that this arrangement
violates the free speech rights of nonmembers by compelling
them to subsidize private speech on matters of substantial
public concern."
The decision reverses a 4-decades-old precedent and upends
laws in 22 states. It also comes on the last day of this Supreme
Court term, adding an exclamation point on the final sentence of
a chapter that began with the appointment of conservative
Justice Neil Gorsuch and saw conservative wins in decision
after decision. This term was also an affirmation of the risky
political gambit played by Senate Majority Leader Mitch
McConnell, who denied a confirmation hearing for Judge
Merrick Garland, President Barack Obama's pick for the court
after Justice Antonin Scalia died.
The plaintiff in this case, Mark Janus, a child-support specialist
for the state of Illinois, challenged a requirement that
government workers who opt out of a union still have to pay
partial dues to cover the union's cost of negotiation and other
functions.
In 1977, the Supreme Court had drawn a distinction between
such mandatory "agency fees" and other, voluntary union dues,
which might be used for lobbying or other political activity.
Wednesday's decision erases that distinction. The court's
conservative wing found that negotiations by public sector
unions are inherently political and nonmembers cannot be
compelled to pay for them. "In addition to affecting how public

money is spent, union speech in collective bargaining addresses
many other important matters," Alito wrote. "We have often
recognized that such speech 'occupies the highest rung of the
hierarchy of First Amendment values' and merits 'special
protection.' "
Alito dismissed the argument that allowing nonmembers to opt
out of negotiating fees would allow them to unfairly piggyback
on their dues-paying co-workers.
Janus "strenuously objects to this free-rider label," Alito wrote.
"He argues that he is not a free rider on a bus headed for a
destination that he wishes to reach but is more like a person
shanghaied for an unwanted voyage."
The high court heard a similar case in 2016, but deadlocked 4-4
after Scalia's death, giving public sector unions a two-year
reprieve.
While the Obama administration sided with the union in that
earlier case, the Trump administration backed Janus and his
fellow union holdouts. Wednesday's ruling is a victory for
conservative activists who have been waging a multipronged
battle against organized labor — and a potentially crippling
blow for public sector unions.
"Public employee unions will lose a secure source of financial
support," Justice Elena Kagan wrote in a dissenting opinion.
"Across the country, the relationships of public employees and
employers will alter in both predictable and wholly unexpected
ways. Rarely if ever has the Court overruled a decision — let
alone one of this import — with so little regard for the usual
principles of stare decisis," that is, allowing past rulings to
stand.
The plaintiff in this case, Mark Janus, a child-support specialist
for the state of Illinois, challenged a requirement that
government workers who opt out of a union still have to pay
partial dues to cover the union's cost of negotiation and other
functions.
In 1977, the Supreme Court had drawn a distinction between
such mandatory "agency fees" and other, voluntary union dues,

which might be used for lobbying or other political activity.
Wednesday's decision erases that distinction. The court's
conservative wing found that negotiations by public sector
unions are inherently political and nonmembers cannot be
compelled to pay for them.
"In addition to affecting how public money is spent, union
speech in collective bargaining addresses many other important
matters," Alito wrote. "We have often recognized that such
speech 'occupies the highest rung of the hierarchy of First
Amendment values' and merits 'special protection.' "
Alito dismissed the argument that allowing nonmembers to opt
out of negotiating fees would allow them to unfairly piggyback
on their dues-paying co-workers. Janus "strenuously objects to
this free-rider label," Alito wrote. "He argues that he is not a
free rider on a bus headed for a destination that he wishes to
reach but is more like a person shanghaied for an unwanted
voyage."
The high court heard a similar case in 2016, but deadlocked 4-4
after Scalia's death, giving public sector unions a two-year
reprieve.
While the Obama administration sided with the union in that
earlier case, the Trump administration backed Janus and his
fellow union holdouts.
Wednesday's ruling is a victory for conservative activists who
have been waging a multipronged battle against organized labor
— and a potentially crippling blow for public sector unions.
"Public employee unions will lose a secure source of financial
support," Justice Elena Kagan wrote in a dissenting opinion.
"Across the country, the relationships of public employees and
employers will alter in both predictable and wholly unexpected
ways. Rarely if ever has the Court overruled a decision — let
alone one of this import — with so little regard for the usual
principles of stare decisis," that is, allowing past rulings to
stand.
"This case is yet another example of corporate interests using

their power and influence to launch a political attack on
working people and rig the rules of the economy in their own
favor," Lee Saunders, president of the American Federation of
State, County and Municipal Employees , said in a statement
when the case reached the high court.
Government workers have been a relative stronghold in an
otherwise shrinking labor movement. More than a third of the
public sector workforce is unionized, compared with less than 7
percent in the private sector.
A survey by the AFSCME — the union Janus would have to pay
into — found that if agency fees were no longer mandatory, 15
percent of employees would stop paying them, while 35 percent
would continue to pay. The balance of workers were "on the
fence."
Justice Thomas, Opinion of the Court
SUPREME COURT OF THE UNITED STATES
JACK GROSS, PETITIONER v. FBL FINANCIAL SERVICES,
INC.
on writ of certiorari to the united states court of appeals for the
eighth circuit
[June 18, 2009]
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. §621et 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, who had previously been
supervised by Gross and who was then in her early forties. App.
to Pet. for Cert. 23a (District Court opinion). Although 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 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 (1989) . See 526 F. 3d
356, 358 (2008). In Price Waterhouse, this Court addressedthe
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. §2000eet 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 (plurality opinion).
The Price Waterhouse decision was splintered. Four Justices
joined a plurality opinion, see id., at 231–258, Justices White
and O’Connor 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 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 (plurality opinion); id., at 259–
260 (opinion of White, J.); id., at 276 (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.
In accordance with Circuit precedent, the Court of Appeals
identified Justice O’Connor’s opinion as controlling. See 526
F. 3d, at 359 (citing Erickson v. Farmland Industries, 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 actually 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 quotation marks omitted). Only upon a
presentation of such evidence, 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’Connor, 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 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.

We granted certiorari, 555 U. S. ___ (2008), and now vacate
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 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.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 Justices
concurring in the judgment determined that once a “plaintiff in
a Title VII case proves that [the plaintiff’s membership in a
protected class] played a motivating part in an 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 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”
(emphasis added)); §2000e–5(g)(2)(B) (restricting the remedies
available to plaintiffs proving violations of §2000e–2(m)).
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. ___, ___ (2008)
(slip op., at 2). 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 (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 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 (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).
…(SECTIONS DELETED)…
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.
Notes
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 ,

n. 8 (2005) (“ ‘Questions not explicitly mentioned but essential
to the analysis of the decisions below or to the correct
disposition 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))); Ballard v. Commissioner, 544
U. S. 40 , and n. 2 (2005) (evaluating “a question anterior” to
the “questions the parties raised”).
2 Justice Stevens argues that the Court must incorporate its past
interpretations of Title VII into the ADEA because “the
substantive provisions of the ADEA were derived in haec verba
from Title VII,” post, at 4 (dissenting opinion) (internal
quotation marks omitted), and because the Court has frequently
applied its interpretations of Title VII to the ADEA, see post, at
4–6. But the Court’s approach to interpreting the ADEA in light
of Title VII has not been uniform. In General Dynamics 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.
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

2–3 (dissenting opinion). But that is a decision for Congress to
make. See Florida Dept. of Revenue v. Piccadilly Cafeterias,
Inc., 554 U. S. ___, ___ (2008) (slip op., at 18). Congress
amended Title VII to allow for employer liability when
discrimination “was a motivating factor for any employment
practice, even though other factors also motivated the practice,”
42 U. S. C. §2000e–2(m) (emphasis added), but did not
similarly amend the ADEA, see supra, at 5–6. We must give
effect to Congress’ choice. See 14 Penn Plaza LLC v. Pyett, 556
U. S. ___, ___ (2009) (slip op., at 21).
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, evidence 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 7. 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. Congress not only explicitly added “motivating

factor” liability to Title VII, see supra, at 5–6, but it also
partially abrogated Price Waterhouse’s holding by eliminating
an employer’s complete affirmative defense to “motivating
factor” claims, see 42 U. S. C. §2000e–5(g)(2)(B). If such
“motivating 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 absence 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.
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 statutory position. The case involving the
NLRA did not require the Court to decide in the first instance
whether burden shifting should apply as the Court instead
deferred to the National Labor Relation Board’s determination
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.
DISSENT
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. §621et 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 opinion 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 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 simply 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.
PAGE
4

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