The latest lesson on the “ordinary meaning” of a critical preposition

The US Supreme Court on June 18, 2009 gave us a new lesson on the “ordinary meaning” of the words “because of.” Construing this critical preposition in the text of the Age Discrimination in Employment Act (ADEA), a five-Justice majority concluded the statute’s requirement that an adverse employment action was taken “because of” age means that “age was the ‘reason’ that the employer decided to act.” (Gross v FBL Fin Servs, Inc, USSCt, Dkt 08-441). Thus, held the majority, to establish a disparate treatment claim under “the plain language” of the ADEA, “a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Age bias must be the sole cause, not just one cause.

Of course, as we all know, reasonable minds can differ. And in this case, four Justices had an entirely different take on the meaning of those two little words: “The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee,” wrote Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, dissenting. Acknowledging the majority’s correct citation of the dictionary definition of the controversial preposition – “‘by reason of’ or ‘on account of,’” – Justice Stevens emphasized in a footnote that the dictionary does not define “because of” as “‘solely by reason of’ or ‘exclusively on account of.’”

In a separate dissent authored by Justice Breyer and joined by Justices Souter and Ginsburg, the Justices declare: “The words ‘because of’ do not inherently require a showing of ‘but-for’ causation.” These three dissenting Justices found no reason to read the disputed preposition to require “but-for” causation.

Then there’s the matter of the meaning ascribed to the same two words in the High Court’s Price Waterhouse v Hopkins decision (49 EPD ¶38,936). Justice Stevens reminded the Gross Court that the words “because of” in the earlier plurality opinion concerning a Title VII sex-bias claim meant “that gender must be irrelevant to employment decisions.” “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,’” Justice Stevens wrote.

I know– different Court, different Justices – only three of the Court’s current Justices were on the Court in 1989 when Price Waterhouse was decided. Still, it seems that the “ordinary meaning” of the words “because of” would not have changed so much in the ensuing 20 years. After all, the majority in Gross relied on definitions obtained from dictionaries published in 1966 and 1933.

In any event, I suspect the confusion over this recent lesson on the “ordinary meaning” of this critical preposition will soon be irrelevant. Relying on its narrow construction of the words “because of,” the High Court closed off to age-bias plaintiffs the mixed-motives route (available in Title VII cases) that would enable proof of employment discrimination when the prohibited bias was at least one, but not the only, motive for an adverse action. With so many older individuals in the workforce and the increased incidence of age-bias claims, I don’t think this higher standard for age-bias claims will remain the law for long. The 29-percent increase in EEOC age bias charges filed in 2008 over those filed in 2007 – a 48-percent jump from the number filed in 2005 – should provide enough momentum for Congress to take action.