Gross Disunity

Abstract

In the recent case of Gross v. FBL Financial Services, the Court addressed what it means to say that an employee was demoted “because of” his age. Perhaps more importantly, it addressed the question of whether “because of” has the same meaning in age discrimination cases as it does in cases involving other types of discrimination, such as race or sex discrimination. For many years, the Court had espoused uniformity, suggesting that the phrase “because of” should have the same meaning in all anti-discrimination statutes. But in Gross, the Court rejected this ideal of uniformity, holding that “because of” means one thing for race discrimination plaintiffs, and something else (something less favorable) for age discrimination plaintiffs.

This essay critiques Gross’s rejection of uniformity on four grounds. First, it argues that the ideal of uniformity makes good sense, both as a practical matter and as an understanding of Congressional intent; yet, Gross rejected this ideal without a good explanation. Second, it argues that the timing of the Court’s about-face on uniformity is suspect; that it may suggest a Court that is recalcitrant after having been rebuked by Congress or resistant to Congress’s new definition of “because of.” Third, it argues that the Court’s about-face on uniformity almost certainly reflects a problematic resistance to burden-shifting in anti-discrimination cases. And fourth, it argues that the definition of “because of” adopted by the Court in Gross is normatively flawed, both in its rejection of burden-shifting and in its embrace of a but-for standard of causation for liability. Accordingly, this essay ends with a call for legislative action, not just over-ruling Gross, but unifying disparate treatment law around a good definition of “because of.”