{"id":142,"date":"2014-09-17T00:42:05","date_gmt":"2014-09-17T00:42:05","guid":{"rendered":"https:\/\/courses.candelalearning.com\/buslegalenv\/?post_type=chapter&p=142"},"modified":"2015-04-21T22:19:33","modified_gmt":"2015-04-21T22:19:33","slug":"16-4-cases","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/16-4-cases\/","title":{"raw":"Cases","rendered":"Cases"},"content":{"raw":"

Disparate Treatment: Burdens of Proof<\/h2>\r\n
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\r\n\r\nBarbano v. Madison County\r\n\r\n922 F.2d 139 (2d Cir. 1990)\r\n
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Factual Background<\/h3>\r\nAt the Madison County (New York State) Veterans Service Agency, the position of director became vacant. The County Board of Supervisors created a committee of five men to hold interviews for the position. The committee interviewed Maureen E. Barbano and four others. When she entered the interview room, she heard someone say, \u201cOh, another woman.\u201d At the beginning of the interview, Donald Greene said he would not consider \u201csome woman\u201d for the position. Greene also asked Barbano some personal questions about her family plans and whether her husband would mind if she transported male veterans. Ms. Barbano answered that the questions were irrelevant and discriminatory. However, Greene replied that the questions were relevant because he did not want to hire a woman who would get pregnant and quit. Another committee member, Newbold, agreed that the questions were relevant, and no committee member said the questions were not relevant.\r\n\r\nNone of the interviewers rebuked Greene or objected to the questions, and none of them told Barbano that she need not answer them. Barbano did state that if she decided to have a family she would take no more time off than medically necessary. Greene once again asked whether Barbano\u2019s husband would object to her \u201crunning around the country with men\u201d and said he would not want his wife to do it. Barbano said she was not his wife. The interview concluded after Barbano asked some questions about insurance.\r\n\r\nAfter interviewing several other candidates, the board hired a man. Barbano sued the county for sex discrimination in violation of Title VII, and the district court held in her favor. She was awarded $55,000 in back pay, prejudgment interest, and attorney\u2019s fees. Madison County appealed the judgment of Federal District Judge McAvoy; Barbano cross-appealed, asking for additional damages.\r\n\r\nThe court then found that Barbano had established a prima facie case of discrimination under Title VII, thus bringing into issue the appellants\u2019 purported reasons for not hiring her. The appellants provided four reasons why they chose Wagner over Barbano, which the district court rejected either as unsupported by the record or as a pretext for discrimination in light of Barbano\u2019s interview. The district court then found that because of Barbano\u2019s education and experience in social services, the appellants had failed to prove that absent the discrimination, they still would not have hired Barbano. Accordingly, the court awarded Barbano back pay, prejudgment interest, and attorney\u2019s fees. Subsequently, the court denied Barbano\u2019s request for front pay and a mandatory injunction ordering her appointment as director upon the next vacancy. This appeal and cross-appeal followed.\r\n\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n
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From the Opinion of FEINBERG, CIRCUIT JUDGE<\/h3>\r\nAppellants argue that the district court erred in finding that Greene\u2019s statements during the interview showed that the Board discriminated in making the hiring decision, and that there was no direct evidence of discrimination by the Board, making it improper to require that appellants prove that they would not have hired Barbano absent the discrimination. Barbano in turn challenges the adequacy of the relief awarded to her by the district court.\r\n
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A. Discrimination<\/h4>\r\nAt the outset, we note that Judge McAvoy\u2019s opinion predated Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1990), in which the Supreme Court made clear that a \u201cpretext\u201d case should be analyzed differently from a \u201cmixed motives\u201d case. Id.<\/em> 109 S. Ct. at 1788-89. Judge McAvoy, not having the benefit of the Court\u2019s opinion in Price Waterhouse, did not clearly distinguish between the two types of cases in analyzing the alleged discrimination. For purposes of this appeal, we do not think it is crucial how the district court categorized the case. Rather, we need only concern ourselves with whether the district court\u2019s findings of fact are supported by the record and whether the district court applied the proper legal standards in light of its factual findings.\r\n\r\nWhether the case is one of pretext or mixed motives, the plaintiff bears the burden of persuasion on the issue of whether gender played a part in the employment decision. Price Waterhouse v. Hopkins, at 1788<\/em>. Appellants contend that Barbano did not sustain her burden of proving discrimination because the only evidence of discrimination involved Greene\u2019s statements during the interview, and Greene was an elected official over whom the other members of the Board exercised no control. Thus, appellants maintain, since the hiring decision was made by the 19-member board, evidence of discrimination by one member does not establish that the Board discriminated in making the hiring decision.\r\n\r\nWe agree that discrimination by one individual does not necessarily imply that a collective decision-making body of which the individual is a member also discriminated. However, the record before us supports the district court\u2019s finding that the Board discriminated in making the hiring decision.\r\n\r\nFirst, there is little doubt that Greene\u2019s statements during the interview were discriminatory. He said he would not consider \u201csome woman\u201d for the position. His questioning Barbano about whether she would get pregnant and quit was also discriminatory, since it was unrelated to a bona fide occupational qualification. King v. Trans World Airlines, 738 F.2d 255, 258 n.2 (8th Cir. 1984). Similarly, Greene\u2019s questions about whether Barbano\u2019s husband would mind if she had to \u201crun around the country with men,\u201d and that he would not want his wife to do it, were discriminatory, since once again the questions were unrelated to bona fide occupational qualifications. Hopkins<\/em>, at 1786.\r\n\r\nMoreover, the import of Greene\u2019s discriminatory questions was substantial, since apart from one question about her qualifications, none of the interviewers asked Barbano about other areas that allegedly formed the basis for selecting a candidate. Thus, Greene\u2019s questioning constituted virtually the entire interview, and so the district court properly found that the interview itself was discriminatory.\r\n\r\nNext, given the discriminatory tenor of the interview, and the acquiescence of the other Committee members to Greene\u2019s line of questioning, it follows that the judge could find that those present at the interview, and not merely Greene, discriminated against Barbano. Judge McAvoy pointed out that the Chairman of the Committee, Newbold, thought Greene\u2019s discriminatory questions were relevant. Significantly, Barbano protested that Greene\u2019s questions were discriminatory, but no one agreed with her or told her that she need not answer. Indeed, no one even attempted to steer the interview in another direction. This knowing and informed toleration of discriminatory statements by those participating in the interview constitutes evidence of discrimination by all those present. That each member was independently elected to the Board does not mean that the Committee itself was unable to control the course of the interview. The Committee had a choice of how to conduct the interview, and the court could find that the Committee exercised that choice in a plainly discriminatory fashion.\r\n\r\nThis discrimination directly affected the hiring decision. At the end of the interviewing process, the interviewers evaluated the candidates, and on that basis submitted a recommendation as to which candidate to hire for the position. \u201cEvaluation does not occur in a vacuum. By definition, when evaluating a candidate to fill a vacant position, one compares that candidate against other eligible candidates.\u201d Berl v. County of Westchester, 849 F.2d 712, 715 (2d Cir. 1988). Appellants stipulated that Barbano was qualified for the position. Again, because Judge McAvoy could find that the evaluation of Barbano was biased by gender discrimination, the judge could also find that the Committee\u2019s recommendation to hire Wagner, which was the result of a weighing of the relative merits of Barbano, Wagner and the other eligible candidates, was necessarily tainted by discrimination.\r\n\r\nThe Board in turn unanimously accepted the Committee\u2019s recommendation to hire Wagner, and so the Board\u2019s hiring decision was made in reliance upon a discriminatory recommendation. The Supreme Court in Hopkins v. Price Waterhouse found that a collective decision-making body can discriminate by relying upon discriminatory recommendations, and we are persuaded that the reasoning in that case applies here as well.\r\n\r\nIn Hopkins\u2019 case against Price Waterhouse, Ann Hopkins, a candidate for partnership at the accounting firm of Price Waterhouse, alleged that she was refused admission as a partner because of sex discrimination. Hopkins\u2019s evidence of discrimination consisted largely of evaluations made by various partners. Price Waterhouse argued that such evidence did not prove that its internal Policy Board, which was the effective decision-maker as to partnership in that case, had discriminated. The Court rejected that argument and found the evidence did establish discrimination:\r\n
Hopkins showed that the partnership solicited evaluations from all of the firm\u2019s partners; that it generally relied very heavily on such evaluations in making its decision; that some of the partners\u2019 comments were the product of [discrimination]; and that the firm in no way disclaimed reliance on those particular comments, either in Hopkins\u2019 case or in the past. Certainly, a plausible\u2014and, one might say, inevitable\u2014conclusion to draw from this set of circumstances is that the Policy Board in making its decision did in fact take into account all of the partners\u2019 comments, including the comments that were motivated by [discrimination].\r\n\r\nHopkins<\/em>, at 1794.<\/blockquote>\r\nIn a very significant sense, Barbano presents an even stronger case of discrimination because the only recommendation the Board relied upon here was discriminatory, whereas in Price Waterhouse, not all of the evaluations used in the decision-making process were discriminatory. On the other hand, it is true that the discriminatory content of some of the evaluations in Price Waterhouse was apparent from reading them, whereas here, the recommendation was embodied in a resolution to the Board and a reading of the resolution would not reveal that it was tainted by discrimination. Nonetheless, the facts in this case show that the Board was put on notice before making the appointment that the Committee\u2019s recommendation was biased by discrimination.\r\n\r\nBarbano was a member of the public in attendance at the Board meeting in March 1980 when the Board voted to appoint Wagner. Before the Board adopted the resolution appointing Wagner, Barbano objected and asked the Board if male applicants were asked the questions she was asked during the interview. At this point, the entire Board membership was alerted to the possibility that the Committee had discriminated against Barbano during her interview. The Committee members did not answer the question, except for Newbold, who evaded the issue by stating that he did not ask such questions. The Board\u2019s ability to claim ignorance at this point was even further undermined by the fact that the Chairman of the Board, Callahan, was present at many of the interviews, including Barbano\u2019s, in his role as Chairman of the Board. Callahan did not refute Barbano\u2019s allegations, implying that they were worthy of credence, and none of the Board members even questioned Callahan on the matter.\r\n\r\nIt is clear that those present understood Barbano was alleging that she had been subjected to discrimination during her interview. John Patane, a member of the Board who had not interviewed Barbano, asked Barbano whether she was implying that Madison County was not an equal opportunity employer. Barbano said yes. Patane said the County already had their \u201ctoken woman.\u201d Callahan apologized to Barbano for \u201cany improper remarks that may have been made,\u201d but an apology for discrimination does not constitute an attempt to eliminate the discrimination from the hiring decision. Even though the Board was aware of possible improprieties, it made no investigation whatsoever into the allegations and did not disclaim any reliance upon the discrimination. In short, the circumstances show the Board was willing to rely on the Committee\u2019s recommendation even if Barbano had been discriminated against during her interview. On these facts, it was not clearly erroneous for the district court to conclude that Barbano sustained her burden of proving discrimination by the Board.\r\n\r\n<\/div>\r\n
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B. The Employer\u2019s Burden<\/h4>\r\nHaving found that Barbano carried her burden of proving discrimination, the district court then placed the burden on appellants to prove by a preponderance of the evidence that, absent the discrimination, they would not have hired Barbano for the position. Appellants argue that this burden is only placed on an employer if the plaintiff proves discrimination by direct evidence, and since Barbano\u2019s evidence of discrimination was merely circumstantial, the district court erred by placing the burden of proof on them. Appellants, however, misapprehend the nature of Barbano\u2019s proof and thus the governing legal standard.\r\n\r\nThe burden is properly placed on the defendant \u201conce the plaintiff establishes by direct evidence that an illegitimate factor played a motivating or substantial role in an employment decision.\u201d Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989). Thus, the key inquiry on this aspect of the case is whether the evidence is direct, that is, whether it shows that the impermissible criterion played some part in the decision-making process. See Hopkins<\/em>, at 1791; Grant<\/em>, 880 F.2d at 1569. If plaintiff provides such evidence, the fact-finder must then determine whether the evidence shows that the impermissible criterion played a motivating or substantial part in the hiring decision. Grant, 880 F.2d at 1569.\r\n\r\nAs we found above, the evidence shows that Barbano\u2019s gender was clearly a factor in the hiring decision. That the discrimination played a substantial role in that decision is shown by the importance of the recommendation to the Board. As Rafte testified, the Board utilizes a committee system, and so the Board \u201cusually accepts\u201d a committee\u2019s recommendation, as it did here when it unanimously voted to appoint Wagner. Had the Board distanced itself from Barbano\u2019s allegations of discrimination and attempted to ensure that it was not relying upon illegitimate criteria in adopting the Committee\u2019s recommendation, the evidence that discrimination played a substantial role in the Board\u2019s decision would be significantly weakened. The Board showed no inclination to take such actions, however, and in adopting the discriminatory recommendation allowed illegitimate criteria to play a substantial role in the hiring decision.\r\n\r\nThe district court thus properly required appellants to show that the Board would not have hired Barbano in the absence of discrimination. \u201cThe employer has not yet been shown to be a violator, but neither is it entitled to the\u2026presumption of good faith concerning its employment decisions. At this point the employer may be required to convince the fact-finder that, despite the smoke, there is no fire.\u201d Hopkins<\/em>, at 1798-99 (O\u2019Connor, J., concurring).\r\n\r\nJudge McAvoy noted in his opinion that appellants claimed they chose Wagner over Barbano because he was better qualified in the following areas: (1) interest in veterans\u2019 affairs; (2) experience in the military; (3) tactfulness; and (4) experience supervising an office. The judge found that the evidence before him supported only appellants\u2019 first and second reasons for refusing to hire Barbano, but acknowledged that the Committee members \u201cwere enamored with Wagner\u2019s military record and involvement with veterans\u2019 organizations.\u201d However, neither of these is listed as a job requirement in the job description, although the district court found that membership in a veterans\u2019 organization may indicate an interest in veterans\u2019 affairs. Nonetheless, the district court found that given Barbano\u2019s \u201ceducation and experience in social services,\u201d appellants failed to carry their burden of proving by a preponderance of the evidence that, absent discrimination, they would not have hired Barbano.\r\n\r\nThe district court properly held appellants to a preponderance of the evidence standard. Hopkins<\/em>, 109 S. Ct. at 1795.\u2026\r\n\r\nAt the time of the hiring decision in 1980, Barbano had been a Social Welfare Examiner for Madison County for the three previous years. In this position, she determined the eligibility of individuals for public assistance, medicaid or food stamps, and would then issue or deny the individual\u2019s application based on all federal, state and local regulations pertaining to the program from which the individual was seeking assistance. Barbano was thus familiar with the operation of public assistance programs, knew how to fill out forms relating to benefits and had become familiar with a number of welfare agencies that could be of use to veterans. Barbano was also working towards an Associate Degree in Human Services at the time. Rafte testified that Barbano\u2019s resume was \u201cvery impressive.\u201d Moreover, Barbano, unlike Wagner, was a resident of Madison County, and according to Rafte, a candidate\u2019s residency in the county was considered to be an advantage. Finally, Barbano had also enlisted in the United States Marine Corps in 1976, but during recruit training had been given a vaccine that affected her vision. She had received an honorable discharge shortly thereafter.\r\n\r\nWagner had nine years experience as an Air Force Personnel Supervisor, maintaining personnel records, had received a high school equivalency diploma and took several extension classes in management. He had been honorably discharged from the Air Force in 1965 with the rank of Staff Sergeant. Wagner was a member of the American Legion, and his application for the position included recommendations from two American Legion members. However, for the six years prior to his appointment as Director, Wagner\u2019s sole paid employment was as a school bus driver and part-time bartender at the American Legion. Wagner admitted that before he was hired he had no knowledge of federal, state and local laws, rules and regulations pertaining to veterans\u2019 benefits and services, or knowledge of the forms, methods and procedures used to process veteran benefits claims. Wagner also had not maintained liaison with welfare agencies and was unfamiliar with the various welfare agencies that existed in the county.\r\n\r\nTo be sure, both candidates were qualified for the Director\u2019s position, and it is not our job\u2014nor was it the district court\u2019s\u2014to decide which one was preferable. However, there is nothing to indicate that Judge McAvoy misconceived his function in this phase of the case, which was to decide whether appellants failed to prove by a preponderance of the evidence that they would not have hired Barbano even if they had not discriminated against her. The judge found that defendants had not met that burden. We must decide whether that finding was clearly erroneous, and we cannot say that it was.\r\n
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Case Questions<\/h3>\r\n
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  1. Madison County contended that Barbano needed to provide \u201cdirect evidence\u201d of discrimination that had played a motivating or substantial part in the decision. What would such evidence look like? Is it likely that most plaintiffs who are discriminated against because of their gender would be able to get \u201cdirect evidence\u201d that gender was a motivating or substantial factor?<\/li>\r\n\t
  2. The \u201cclearly erroneous\u201d standard is applied here, as it is in many cases where appellate courts review trial court determinations. State the test, and say why the appellate court believed that the trial judge\u2019s ruling was not \u201cclearly erroneous.\u201d<\/li>\r\n<\/ol>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n
    \r\n

    Title VII and Hostile Work Environment<\/h2>\r\nDuncan v. General Motors Corporation\r\n\r\n300 F.3d 928 (8th Cir. 2002)\r\n\r\nOPINION BY HANSEN, Circuit Judge.\r\n\r\nThe Junior College District of St. Louis (the College) arranged for Diana Duncan to provide in-house technical training at General Motors Corporation\u2019s (GMC) manufacturing facility in Wentzville, Missouri. Throughout her tenure at GMC, Duncan was subjected to unwelcome attention by a GMC employee, James Booth, which culminated in Duncan\u2019s resignation. Duncan subsequently filed this suit under Title VII of the Civil Rights Act and the Missouri Human Rights Act, see 42 U.S.C. \u00a7\u00a7 2000e-2000e-17; Mo. Rev. Stat. \u00a7\u00a7 213.010-213.137,2<\/sup> alleging that she was sexually harassed and constructively discharged. A jury found in favor of Duncan and awarded her $4600 in back pay, $700,000 in emotional distress damages on her sexual harassment claim, and $300,000 in emotional distress damages on her constructive discharge claim. GMC appeals from the district court\u2019s denial of its post trial motion for judgment as a matter of law, and the district court\u2019s award of attorneys\u2019 fees attendant to the post trial motion. We reverse.\r\n
    \r\n

    I<\/h3>\r\nDiana Duncan worked as a technical training clerk in the high-tech area at GMC as part of the College\u2019s Center for Business, Industry, and Labor program from August 1994 until May 1997. Duncan provided in-house training support to GMC employees.\r\n\r\nDuncan first learned about the College\u2019s position at GMC from Booth, a United Auto Workers Union technology training coordinator for GMC. Booth frequented the country club where Duncan worked as a waitress and a bartender. Booth asked Duncan if she knew anyone who had computer and typing skills and who might be interested in a position at GMC. Duncan expressed interest in the job. Booth brought the pre-employment forms to Duncan at the country club, and he forwarded her completed forms to Jerry Reese, the manager of operations, manufacturing, and training for the College. Reese arranged to interview Duncan at GMC. Reese, Booth, and Ed Ish, who was Booth\u2019s management counterpart in the high-tech area of the GMC plant, participated in the interview. Duncan began work at GMC in August 1994.\r\n\r\nTwo weeks after Duncan began working at GMC, Booth requested an off-site meeting with her at a local restaurant. Booth explained to Duncan that he was in love with a married coworker and that his own marriage was troubled. Booth then propositioned Duncan by asking her if she would have a relationship with him. Duncan rebuffed his advance and left the restaurant. The next day Duncan mentioned the incident to the paint department supervisor Joe Rolen, who had no authority over Booth. Duncan did not report Booth\u2019s conduct to either Reese (her supervisor) at the College or Ish (Booth\u2019s management counterpart) at GMC. However, she did confront Booth, and he apologized for his behavior. He made no further such \u201cpropositions.\u201d Duncan stated that Booth\u2019s manner toward her after she declined his advance became hostile, and he became more critical of her work. For example, whenever she made a typographical error, he told her that she was incompetent and that he should hire a \u201cKelly Services\u201d person to replace her. Duncan admitted that Booth\u2019s criticisms were often directed at other employees as well, including male coworkers.\r\n\r\nDuncan testified to numerous incidents of Booth\u2019s inappropriate behavior. Booth directed Duncan to create a training document for him on his computer because it was the only computer with the necessary software. The screen saver that Booth had selected to use on his computer was a picture of a naked woman. Duncan testified to four or five occasions when Booth would unnecessarily touch her hand when she handed him the telephone. In addition, Booth had a planter in his office that was shaped like a slouched man wearing a sombrero. The planter had a hole in the front of the man\u2019s pants that allowed for a cactus to protrude. The planter was in plain view to anyone entering Booth\u2019s office. Booth also kept a child\u2019s pacifier that was shaped like a penis in his office that he occasionally showed to his coworkers and specifically to Duncan on two occasions.\r\n\r\nIn 1995, Duncan requested a pay increase and told Booth that she would like to be considered for an illustrator\u2019s position. Booth said that she would have to prove her artistic ability by drawing his planter. Duncan objected, particularly because previous applicants for the position were required to draw automotive parts and not his planter. Ultimately, Duncan learned that she was not qualified for the position because she did not possess a college degree.\r\n\r\nAdditionally in 1995, Booth and a College employee created a \u201crecruitment\u201d poster that was posted on a bulletin board in the high-tech area. The poster portrayed Duncan as the president and CEO of the Man Hater\u2019s Club of America. It listed the club\u2019s membership qualifications as: \u201cMust always be in control of: (1) Checking, Savings, all loose change, etc.; (2) (Ugh) Sex; (3) Raising children our way!; (4) Men must always do household chores; (5) Consider T.V. Dinners a gourmet meal.\u201d\u2026\r\n\r\nOn May 5, 1997, Booth asked Duncan to type a draft of the beliefs of the \u201cHe-Men Women Hater\u2019s Club.\u201d The beliefs included the following:\r\n
    \u2014Constitutional Amendment, the 19th, giving women [the] right to vote should be repealed. Real He-Men indulge in a lifestyle of cursing, using tools, handling guns, driving trucks, hunting and of course, drinking beer.\r\n\r\n\u2014Women really do have coodies [sic] and they can spread.\r\n\r\n\u2014Women [are] the cause of 99.9 per cent of stress in men.\r\n\r\n\u2014Sperm has a right to live.\r\n\r\n\u2014All great chiefs of the world are men.\r\n\r\n\u2014Prostitution should be legalized.<\/blockquote>\r\nDuncan refused to type the beliefs and resigned two days later.\r\n\r\nDuncan testified that she complained to anyone who would listen to her about Booth\u2019s behavior, beginning with paint department supervisor Joe Rolen after Booth propositioned her in 1994. Duncan testified that between 1994 and 1997 she complained several times to Reese at the College about Booth\u2019s behavior, which would improve at least in the short term after she spoke with Reese.\u2026\r\n\r\nDuncan filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC) on October 30, 1997. The EEOC issued Duncan a right to sue notice on April 17, 1998. Alleging sexual harassment and constructive discharge, Duncan filed suit against the College and GMC under both Title VII of the Civil Rights Act and the Missouri Human Rights Act. Duncan settled with the College prior to trial. After the jury found in Duncan\u2019s favor on both counts against GMC, GMC filed a post-trial motion for judgment as a matter of law or, alternatively, for a new trial. The district court denied the motion. The district court also awarded Duncan attorneys\u2019 fees in conjunction with GMC\u2019s post-trial motion. GMC appeals.\r\n\r\n<\/div>\r\n
    \r\n

    II<\/h3>\r\n
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    A. Hostile Work Environment<\/h4>\r\nGMC argues that it was entitled to judgment as a matter of law on Duncan\u2019s hostile work environment claim because she failed to prove a prima facie case. We agree.\u2026\r\n\r\nIt is undisputed that Duncan satisfies the first two elements of her prima facie case: she is a member of a protected group and Booth\u2019s attention was unwelcome. We also conclude that the harassment was based on sex.\u2026Although there is some evidence in the record that indicates some of Booth\u2019s behavior, and the resulting offensive and disagreeable atmosphere, was directed at both male and female employees, GMC points to ten incidents when Booth\u2019s behavior was directed at Duncan alone. GMC concedes that five of these ten incidents could arguably be based on sex: (1) Booth\u2019s proposition for a \u201crelationship\u201d; (2) Booth\u2019s touching of Duncan\u2019s hand; (3) Booth\u2019s request that Duncan sketch his planter; (4) the Man Hater\u2019s Club poster; and (5) Booth\u2019s request that Duncan type the He-Men Women Haters beliefs. \u201cA plaintiff in this kind of case need not show\u2026that only women were subjected to harassment, so long as she shows that women were the primary target of such harassment.\u201d We conclude that a jury could reasonably find that Duncan and her gender were the overriding themes of these incidents. The evidence is sufficient to support the jury finding that the harassment was based on sex.\r\n\r\nWe agree, however, with GMC\u2019s assertion that the alleged harassment was not so severe or pervasive as to alter a term, condition, or privilege of Duncan\u2019s employment.\u2026To clear the high threshold of actionable harm, Duncan has to show that \u201cthe workplace is permeated with discriminatory intimidation, ridicule, and insult.\u201d Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal quotations omitted). \u201cConduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment\u2014an environment that a reasonable person would find hostile or abusive\u2014is beyond Title VII\u2019s purview.\u201d Oncale, 523 U.S. at 81 (internal quotation omitted). Thus, the fourth part of a hostile environment claim includes both objective and subjective components: an environment that a reasonable person would find hostile and one that the victim actually perceived as abusive. Harris, 510 U.S. at 21-22. In determining whether the conduct is sufficiently severe or pervasive, we look to the totality of the circumstances, including the \u201cfrequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee\u2019s work performance.\u201d\u2026These standards are designed to \u201cfilter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.\u201d Faragher v. City of Boca Raton, 524 U.S. 775, 788, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal quotations omitted).\r\n\r\nThe evidence presented at trial illustrates that Duncan was upset and embarrassed by the posting of the derogatory poster and was disturbed by Booth\u2019s advances and his boorish behavior; but, as a matter of law, she has failed to show that these occurrences in the aggregate were so severe and extreme that a reasonable person would find that the terms or conditions of Duncan\u2019s employment had been altered.\u2026Numerous cases have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here. See, e.g., Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872, 874 (5th Cir.) (holding that several incidents over a two-year period, including the comment \u201cyour elbows are the same color as your nipples,\u201d another comment that plaintiff had big thighs, repeated touching of plaintiff\u2019s arm, and attempts to look down the plaintiff\u2019s dress, were insufficient to support hostile work environment claim), cert. denied, 528 U.S. 963, 145 L. Ed. 2d 308, 120 S. Ct. 395 (1999); Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62 (7th Cir. 1998) (holding conduct insufficient to support hostile environment claim when employee teased plaintiff, made sexual jokes aimed at her, told her not to wave at police officers \u201cbecause people would think she was a prostitute,\u201d commented about low-necked tops, leered at her breasts, and touched her arm, fingers, or buttocks on four occasions), cert. denied, 528 U.S. 988, 145 L. Ed. 2d 367, 120 S. Ct. 450 (1999); Black v. Zaring Homes,, Inc., 104 F.3d 822, 823-24, 826 (6th Cir.) (reversing jury verdict and holding behavior merely offensive and insufficient to support hostile environment claim when employee reached across plaintiff, stating \u201cnothing I like more in the morning than sticky buns\u201d while staring at her suggestively; suggested to plaintiff that parcel of land be named \u201cHootersville,\u201d \u201cTitsville,\u201d or \u201cTwin Peaks\u201d; and asked \u201cweren\u2019t you there Saturday night dancing on the tables?\u201d while discussing property near a biker bar), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (holding no sexual harassment when plaintiff\u2019s supervisor asked plaintiff for dates, asked about her personal life, called her a \u201cdumb blond,\u201d put his hand on her shoulder several times, placed \u201cI love you\u201d signs at her work station, and attempted to kiss her twice at work and once in a bar).\r\n\r\nBooth\u2019s actions were boorish, chauvinistic, and decidedly immature, but we cannot say they created an objectively hostile work environment permeated with sexual harassment. Construing the evidence in the light most favorable to Duncan, she presented evidence of four categories of harassing conduct based on her sex: a single request for a relationship, which was not repeated when she rebuffed it, four or five isolated incidents of Booth briefly touching her hand, a request to draw a planter, and teasing in the form of a poster and beliefs for an imaginary club. It is apparent that these incidents made Duncan uncomfortable, but they do not meet the standard necessary for actionable sexual harassment. It is worth noting that Duncan fails to even address this component of her prima facie case in her brief. We conclude as a matter of law that she did not show a sexually harassing hostile environment sufficiently severe or pervasive so as to alter the conditions of her employment, a failure that dooms Duncan\u2019s hostile work environment claim. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).\r\n\r\nFor the foregoing reasons, we reverse the district court\u2019s denial of judgment as a matter of law. Because GMC should have prevailed on its post-trial motion, the award of attorneys\u2019 fees is likewise vacated.\r\n\r\nRICHARD S. ARNOLD, Circuit Judge, dissenting.\r\n\r\nThe Court concludes that the harassment suffered by Ms. Duncan was not so severe or pervasive as to alter a term, condition, or privilege of her employment, and that, therefore, GMC is entitled to judgment as a matter of law on her hostile-work environment and constructive-discharge claims. I respectfully disagree.\r\n\r\nMs. Duncan was subjected to a long series of incidents of sexual harassment in her workplace, going far beyond \u201cgender-related jokes and occasional teasing.\u201d Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988). When the evidence is considered in the light most favorable to her, and she is given the benefit of all reasonable inferences, there is \u201csubstantial evidence to sustain the cause of action.\u201d Stockmen\u2019s Livestock Market, Inc. v. Norwest Bank of Sioux City, 135 F.3d 1236, 1240 (8th Cir. 1998) In Ms. Duncan\u2019s case, a jury reached the conclusion that Mr. Booth\u2019s offensive behavior created a hostile work environment. I believe this determination was reasonable and supported by ample evidence.\r\n\r\nMs. Duncan was subjected to a sexual advance by her supervisor within days of beginning her job. This proposition occurred during work hours and was a direct request for a sexual relationship. The Court characterizes this incident as a \u201csingle request,\u201d (but) [t]his description minimizes the effect of the sexual advance on Ms. Duncan\u2019s working conditions. During the months immediately following this incident, Mr. Booth became hostile to Ms. Duncan, increased his criticism of her work, and degraded her professional capabilities in front of her peers. Significantly, there is no suggestion that this hostile behavior occurred before<\/em> Ms. Duncan refused his request for sex. From this evidence, a jury could easily draw the inference that Mr. Booth changed his attitude about Ms. Duncan\u2019s work because she rejected his sexual advance.\r\n\r\nFurther, this sexual overture was not an isolated incident. It was only the beginning of a string of degrading actions that Mr. Booth directed toward Ms. Duncan based on her sex. This inappropriate behavior took many forms, from physical touching to social humiliation to emotional intimidation. For example, Mr. Booth repeatedly touched Ms. Duncan inappropriately on her hand. He publicly singled her out before her colleagues as a \u201cMan Hater\u201d who \u201cmust always be in control of\u201d sex. He required her to choose between drawing a vulgar planter displayed in his office or not being considered for a promotion, an unfair choice that would likely intimidate a reasonable person from seeking further career advancement.\r\n\r\nThe Court cites cases in which our sister Circuits have rejected hostile-work environment claims premised upon facts that the Court determines to be \u201cequally or more egregious\u201d than the conduct at issue here. I do not agree that Ms. Duncan experienced less severe harassment than those plaintiffs. For example, in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993), the plaintiff did not allege that her work duties or evaluations were different because of her sex. This is not the situation Ms. Duncan faced. She was given specific tasks of a sexually charged nature, such as typing up the minutes of the \u201cHe-Man Women Hater\u2019s Club.\u201d Performing this \u201cfunction\u201d was presented to her as a required duty of her job.\r\n\r\nAlso Ms. Duncan was subjected to allegations that she was professionally \u201cincompetent because of her sex.\u201d\u2026She adduced evidence of this factor when she testified that after she rejected his sexual advance, Mr. Booth became more critical of her work. With the request for her to draw the planter for a promotion, Ms. Duncan also faced \u201cconduct that would prevent her from succeeding in the workplace,\u201d a fact that Ms. Shepherd could not point to in her case. Additionally, Ms. Duncan was \u201cpropositioned\u201d to sleep with her employer\u2026a claim not made by Ms. Shepherd.\r\n\r\nFinally, we note that in Ms. Duncan\u2019s case the harassing acts were directed specifically at her. The Court in Black v. Zaring Homes, 104 F.3d 822, 826 (6th Cir.), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997), stated that the lack of specific comments to the plaintiff supported the conclusion that the defendant\u2019s conduct was not severe enough to create actionable harm. By contrast, in the present case, a jury could reasonably conclude that Ms. Duncan felt particularly humiliated and degraded by Mr. Booth\u2019s behavior because she alone was singled out for this harassment.\r\n\r\nOur own Court\u2019s Title VII jurisprudence suggests that Ms. Duncan experienced enough offensive conduct to constitute sexual harassment. For example, in Breeding v. Arthur J. Gallagher and Co. we reversed a grant of summary judgment to an employer, stating that a supervisor who \u201cfondled his genitals [**25] in front of\u201d a female employee and \u201cused lewd and sexually inappropriate language\u201d could create an environment severe enough to be actionable under Title VII. 164 F.3d 1151, 1159 (8th Cir. 1999). In Rorie v. United Parcel Service, we concluded that a work environment in which \u201ca supervisor pats a female employee on the back, brushes up against her, and tells her she smells good\u201d could be found by a jury to be a hostile work environment. 151 F.3d 757, 762 (8th Cir. 1998). Is it clear that the women in these cases suffered harassment greater than Ms. Duncan? I think not.\r\n\r\nWe have acknowledged that \u201cthere is no bright line between sexual harassment and merely unpleasant conduct, so a jury\u2019s decision must generally stand unless there is trial error.\u201d Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1998). We have also ruled that \u201conce there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury.\u201d Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998). The Court admits that Ms. Duncan took subjective offense to Mr. Booth\u2019s behavior and characterizes Mr. Booth\u2019s behavior as \u201cboorish, chauvinistic, and decidedly immature.\u201d Thus, the Court appears to agree that Mr. Booth\u2019s behavior was \u201cimproper conduct.\u201d I believe the Court errs in deciding as a matter of law that the jury did not act reasonably in concluding that Ms. Duncan faced severe or pervasive harassment that created a hostile work environment.\r\n\r\nTherefore, I dissent from the Court\u2019s conclusion that Ms. Duncan did not present sufficient evidence to survive judgment as a matter of law on her hostile work-environment and constructive-discharge claims.\r\n
    \r\n

    Case Questions<\/h3>\r\n
    \r\n
      \r\n\t
    1. Which opinion is more persuasive to you\u2014the majority opinion or the dissenting opinion?<\/li>\r\n\t
    2. \u201cNumerous cases have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here.\u201d By what standard or criteria does the majority opinion conclude that Duncan\u2019s experiences were no worse than those mentioned in the other cases?<\/li>\r\n\t
    3. Should the majority on the appeals court substitute its judgment for that of the jury?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n<\/div>\r\n
      \r\n

      Age Discrimination: Burden of Persuasion<\/h2>\r\nGross v. FBL Financial Services, Inc.\r\n\r\n557 U.S. ___ (2009)\r\n\r\nJUSTICE CLARENCE THOMAS delivered the opinion of the court.\r\n
      \r\n

      I<\/h3>\r\nPetitioner 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\u2019 job responsibilities to a newly created position\u2014claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL\u2019s reallocation of his former job responsibilities to Kneeskern.\r\n\r\nIn 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 \u201cbecause of such individual\u2019s age.\u201d 29 U. S. C. \u00a7623(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\u2019 reassignment was part of a corporate restructuring and that Gross\u2019 new position was better suited to his skills.\r\n\r\nAt the close of trial, and over FBL\u2019s 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 \u201cdemoted [him] to claims projec[t] coordinator\u201d and that his \u201cage was a motivating factor\u201d in FBL\u2019s decision to demote him. The jury was further instructed that Gross\u2019 age would qualify as a \u201c\u2018motivating factor,\u2019 if [it] played a part or a role in [FBL]\u2019s decision to demote [him].\u201d The jury was also instructed regarding FBL\u2019s burden of proof. According to the District Court, the \u201cverdict must be for [FBL]\u2026if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age.\u201d Ibid.<\/em> The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. 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<\/em> v. Hopkins<\/em>, 490 U. S. 228 (1989). In Price Waterhouse<\/em>, this Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations\u2014i.e.<\/em>, a \u201cmixed-motives\u201d case. 490 U. S., at 232, 244\u2013247 (plurality opinion). The Price Waterhouse<\/em> decision was splintered. Four Justices joined a plurality opinion, and three Justices dissented. Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a \u201cmotivating\u201d or a \u201c \u2018substantial\u2019 \u201c factor in the employer\u2019s 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. Justice O\u2019Connor further found that to shift the burden of persuasion to the employer, the employee must present \u201cdirect evidence that an illegitimate criterion was a substantial factor in the [employment] decision.\u201d\u2026\r\n\r\nBecause 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.<\/em> 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 \u201cprov[ing] that age was the determining factor in FBL\u2019s employment action.\u201d\r\n\r\nWe granted certiorari, 555 U.S. ___ (2008), and now vacate the decision of the Court of Appeals.\r\n\r\n<\/div>\r\n
      \r\n

      II<\/h3>\r\nThe parties have asked us to decide whether a plaintiff must \u201cpresent direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.\u201d 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. We hold that it does not.\r\n
      \r\n

      A<\/h4>\r\nPetitioner relies on this Court\u2019s 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.\r\n\r\nIn Price Waterhouse<\/em>, a plurality of the Court and two Justices concurring in the judgment determined that once a \u201cplaintiff in a Title VII case proves that [the plaintiff\u2019s 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.\u201d 490 U. S., at 258; see also id.<\/em>, at 259\u2013260 (opinion of White, J.); id.<\/em>, at 276 (opinion of O\u2019Connor, J.). But as we explained in Desert Palace, Inc.<\/em> v. Costa<\/em>, 539 U. S. 90, 94\u201395 (2003), Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was \u201ca motivating factor\u201d for an adverse employment decision. See 42 U. S. C. \u00a72000e\u20132(m) (providing that \u201can unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor<\/em> for any employment practice, even though other factors also motivated the practice\u201d (emphasis added))\u2026\r\n\r\nThis 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 \u201cmust be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.\u201d Unlike Title VII, the ADEA\u2019s 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 \u00a7\u00a72000e\u20132(m) and 2000e\u20135(g)(2)(B), even though it contemporaneously amended the ADEA in several ways.\u2026\r\n\r\nWe cannot ignore Congress\u2019 decision to amend Title VII\u2019s 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.\u2026As a result, the Court\u2019s interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace<\/em> and Price Waterhouse<\/em>.\r\n\r\n<\/div>\r\n
      \r\n

      B<\/h4>\r\nOur inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. \u201cStatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.\u201d\u2026The ADEA provides, in relevant part, that \u201c[i]t shall be unlawful for an employer\u2026to 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<\/em> such individual\u2019s age.\u201d 29 U. S. C. \u00a7623(a)(1) (emphasis added).\r\n\r\nThe words \u201cbecause of\u201d mean \u201cby reason of: on account of.\u201d Webster\u2019s Third New International Dictionary 194 (1966); see also Oxford English Dictionary 746 (1933) (defining \u201cbecause of\u201d to mean \u201cBy reason of<\/em>, on account of<\/em>\u201d (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining \u201cbecause\u201d to mean \u201cby reason; on account\u201d). Thus, the ordinary meaning of the ADEA\u2019s requirement that an employer took adverse action \u201cbecause of\u201d age is that age was the \u201creason\u201d that the employer decided to act.\u2026To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the \u201cbut-for\u201d cause of the employer\u2019s adverse decision.\u2026\r\n\r\nIt follows, then, that under \u00a7623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the \u201cbut-for\u201d cause of the employer\u2019s adverse action. Indeed, we have previously held that the burden is allocated in this manner in ADEA cases. See Kentucky Retirement Systems<\/em> v. EEOC<\/em>, 554 U. S. ____. And nothing in the statute\u2019s text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is \u201csilent on the allocation of the burden of persuasion,\u201d we \u201cbegin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.\u201d Schaffer<\/em> v. Weast<\/em>, 546 U. S. 49, 56 (2005)\u2026\r\n\r\nHence, 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 \u201cbut-for\u201d cause of the challenged employer decision.\r\n\r\n<\/div>\r\n<\/div>\r\n
      \r\n

      III<\/h3>\r\nFinally, we reject petitioner\u2019s contention that our interpretation of the ADEA is controlled by Price Waterhouse<\/em>, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims. 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 instance.\r\n\r\nWhatever the deficiencies of Price Waterhouse<\/em> 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.\u2026Thus, even if Price Waterhouse<\/em> was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims.\r\n\r\n<\/div>\r\n
      \r\n

      IV<\/h3>\r\nWe 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 \u201cbut-for\u201d 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.\r\n\r\nIt is so ordered.\r\n
      \r\n

      Case Questions<\/h3>\r\n
        \r\n\t
      1. What is the practical effect of this decision? Will plaintiffs with age-discrimination cases find it harder to win after Gross<\/em>?<\/li>\r\n\t
      2. As Justice Thomas writes about it, does \u201cbut-for\u201d cause here mean the \u201csole cause\u201d? Must plaintiffs now eliminate any other possible cause in order to prevail in an ADEA lawsuit?<\/li>\r\n\t
      3. Based on this opinion, if the employer provides a nondiscriminatory reason for the change in the employee\u2019s status (such as \u201ccorporate restructuring\u201d or \u201cbetter alignment of skills\u201d), does the employer bear any burden of showing that those are not just words but that, for example, the restructuring really does make sense or that the \u201cskills\u201d really do line up better in the new arrangement?<\/li>\r\n\t
      4. If the plaintiff was retained at the same salary as before, how could he have a \u201cdiscrimination\u201d complaint, since he still made the same amount of money?<\/li>\r\n\t
      5. The case was decided by a 5-4 majority. A dissent was filed by Justice Stevens, and a separate dissent by Justice Breyer, joined by Justices Ginsburg and Souter. You can access those at http:\/\/www.law.cornell.edu\/supct\/pdf\/08-441P.ZD1<\/a>.<\/li>\r\n<\/ol>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n
        \r\n

        Disability Discrimination<\/h2>\r\nToyota v. Williams\r\n\r\n534 U.S. 184 (2000)\r\n
        \r\n

        Factual Background<\/h3>\r\nElla Williams\u2019s job at the Toyota manufacturing plant involved using pneumatic tools. When her hands and arms began to hurt, she consulted a physician and was diagnosed with carpal tunnel syndrome. The doctor advised her not to work with any pneumatic tools or lift more than twenty pounds. Toyota shifted her to a different position in the quality control inspection operations (QCIO) department, where employees typically performed four different tasks. Initially, Williams was given two tasks, but Toyota changed its policy to require all QCIO employees to rotate through all four tasks. When she performed the \u201cshell body audit,\u201d she had to hold her hands and arms up around shoulder height for several hours at a time.\r\n\r\nShe soon began to experience pain in her neck and shoulders. When she asked permission to do only the two tasks that she could perform without difficulty, she was refused. According to Toyota, Williams then began missing work regularly.\r\n\r\nIn 1997, Toyota Motor Manufacturing, Kentucky, Inc. terminated Ella Williams, citing her poor attendance record. Subsequently, claiming to be disabled from performing her automobile assembly line job by carpal tunnel syndrome and related impairments, Williams sued Toyota for failing to provide her with a reasonable accommodation as required by the Americans with Disabilities Act (ADA) of 1990.\r\n\r\nGranting Toyota summary judgment, the district court held that Williams\u2019s impairment did not qualify as a disability under the ADA because it had not substantially limited any major life activity and that there was no evidence that Williams had had a record of a substantially limiting impairment. In reversing, the court of appeals found that the impairments substantially limited Williams in the major life activity of performing manual tasks. Because her ailments prevented her from doing the tasks associated with certain types of manual jobs that require the gripping of tools and repetitive work with hands and arms extended at or above shoulder levels for extended periods of time, the appellate court concluded that Williams demonstrated that her manual disability involved a class of manual activities affecting the ability to perform tasks at work.\r\n\r\nJUSTICE SANDRA DAY O\u2019CONNOR delivered the unanimous opinion of the court.\r\n\r\nWhen it enacted the ADA in 1990, Congress found that some 43 million Americans have one or more physical or mental disabilities. If Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, the number of disabled Americans would surely have been much higher. We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people\u2019s daily lives. The impairments impact must also be permanent or long-term.\r\n\r\nWhen addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people\u2019s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job. In this case, repetitive work with hands and arms extended at or above shoulder levels for extended periods of time is not an important part of most people\u2019s daily lives. The court, therefore, should not have considered respondent\u2019s inability to do such manual work in or specialized assembly line job as sufficient proof that she was substantially limited in performing manual tasks.\r\n\r\nAt the same time, the Court of Appeals appears to have disregarded the very type of evidence that it should have focused upon. It treated as irrelevant \u201c[t]he fact that [respondent] can\u2026ten[d] to her personal hygiene [and] carr[y]out personal or household chores.\u201d Yet household chores, bathing, and brushing one\u2019s teeth are among the types of manual tasks of central importance to people\u2019s daily lives, and should have been part of the assessment of whether respondent was substantially limited in performing manual tasks.\r\n\r\nThe District Court noted that at the time respondent sought an accommodation from petitioner, she admitted that she was able to do the manual tasks required by her original two jobs in QCIO. In addition, according to respondent\u2019s deposition testimony, even after her condition worsened, she could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house. The record also indicates that her medical conditions caused her to avoid sweeping, to quit dancing, to occasionally seek help dressing, and to reduce how often she plays with her children, gardens, and drives long distances. But these changes in her life did not amount to such severe restrictions in the activities that are of central importance to most people\u2019s daily lives that they establish a manual task disability as a matter of law. On this record, it was therefore inappropriate for the Court of Appeals to grant partial summary judgment to respondent on the issue of whether she was substantially limited in performing manual tasks, and its decision to do so must be reversed.\r\n\r\nAccordingly, we reverse the Court of Appeals\u2019 judgment granting partial summary judgment to respondent and remand the case for further proceedings consistent with this opinion.\r\n
        \r\n

        Case Questions<\/h3>\r\n
        \r\n
          \r\n\t
        1. What is the court\u2019s most important \u201cfinding of fact\u201d relative to hands and arms? How does this relate to the statutory language that Congress created in the ADA?<\/li>\r\n\t
        2. The case is remanded to the lower courts \u201cfor further proceedings consistent with this opinion.\u201d In practical terms, what does that mean for this case?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n
          <\/div>\r\n<\/div>\r\n<\/div>\r\n<\/div>\r\n<\/div>","rendered":"

          Disparate Treatment: Burdens of Proof<\/h2>\n
          \n
          \n

          Barbano v. Madison County<\/p>\n

          922 F.2d 139 (2d Cir. 1990)<\/p>\n

          \n

          Factual Background<\/h3>\n

          At the Madison County (New York State) Veterans Service Agency, the position of director became vacant. The County Board of Supervisors created a committee of five men to hold interviews for the position. The committee interviewed Maureen E. Barbano and four others. When she entered the interview room, she heard someone say, \u201cOh, another woman.\u201d At the beginning of the interview, Donald Greene said he would not consider \u201csome woman\u201d for the position. Greene also asked Barbano some personal questions about her family plans and whether her husband would mind if she transported male veterans. Ms. Barbano answered that the questions were irrelevant and discriminatory. However, Greene replied that the questions were relevant because he did not want to hire a woman who would get pregnant and quit. Another committee member, Newbold, agreed that the questions were relevant, and no committee member said the questions were not relevant.<\/p>\n

          None of the interviewers rebuked Greene or objected to the questions, and none of them told Barbano that she need not answer them. Barbano did state that if she decided to have a family she would take no more time off than medically necessary. Greene once again asked whether Barbano\u2019s husband would object to her \u201crunning around the country with men\u201d and said he would not want his wife to do it. Barbano said she was not his wife. The interview concluded after Barbano asked some questions about insurance.<\/p>\n

          After interviewing several other candidates, the board hired a man. Barbano sued the county for sex discrimination in violation of Title VII, and the district court held in her favor. She was awarded $55,000 in back pay, prejudgment interest, and attorney\u2019s fees. Madison County appealed the judgment of Federal District Judge McAvoy; Barbano cross-appealed, asking for additional damages.<\/p>\n

          The court then found that Barbano had established a prima facie case of discrimination under Title VII, thus bringing into issue the appellants\u2019 purported reasons for not hiring her. The appellants provided four reasons why they chose Wagner over Barbano, which the district court rejected either as unsupported by the record or as a pretext for discrimination in light of Barbano\u2019s interview. The district court then found that because of Barbano\u2019s education and experience in social services, the appellants had failed to prove that absent the discrimination, they still would not have hired Barbano. Accordingly, the court awarded Barbano back pay, prejudgment interest, and attorney\u2019s fees. Subsequently, the court denied Barbano\u2019s request for front pay and a mandatory injunction ordering her appointment as director upon the next vacancy. This appeal and cross-appeal followed.<\/p>\n<\/div>\n<\/div>\n<\/div>\n

          \n

          From the Opinion of FEINBERG, CIRCUIT JUDGE<\/h3>\n

          Appellants argue that the district court erred in finding that Greene\u2019s statements during the interview showed that the Board discriminated in making the hiring decision, and that there was no direct evidence of discrimination by the Board, making it improper to require that appellants prove that they would not have hired Barbano absent the discrimination. Barbano in turn challenges the adequacy of the relief awarded to her by the district court.<\/p>\n

          \n

          A. Discrimination<\/h4>\n

          At the outset, we note that Judge McAvoy\u2019s opinion predated Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1990), in which the Supreme Court made clear that a \u201cpretext\u201d case should be analyzed differently from a \u201cmixed motives\u201d case. Id.<\/em> 109 S. Ct. at 1788-89. Judge McAvoy, not having the benefit of the Court\u2019s opinion in Price Waterhouse, did not clearly distinguish between the two types of cases in analyzing the alleged discrimination. For purposes of this appeal, we do not think it is crucial how the district court categorized the case. Rather, we need only concern ourselves with whether the district court\u2019s findings of fact are supported by the record and whether the district court applied the proper legal standards in light of its factual findings.<\/p>\n

          Whether the case is one of pretext or mixed motives, the plaintiff bears the burden of persuasion on the issue of whether gender played a part in the employment decision. Price Waterhouse v. Hopkins, at 1788<\/em>. Appellants contend that Barbano did not sustain her burden of proving discrimination because the only evidence of discrimination involved Greene\u2019s statements during the interview, and Greene was an elected official over whom the other members of the Board exercised no control. Thus, appellants maintain, since the hiring decision was made by the 19-member board, evidence of discrimination by one member does not establish that the Board discriminated in making the hiring decision.<\/p>\n

          We agree that discrimination by one individual does not necessarily imply that a collective decision-making body of which the individual is a member also discriminated. However, the record before us supports the district court\u2019s finding that the Board discriminated in making the hiring decision.<\/p>\n

          First, there is little doubt that Greene\u2019s statements during the interview were discriminatory. He said he would not consider \u201csome woman\u201d for the position. His questioning Barbano about whether she would get pregnant and quit was also discriminatory, since it was unrelated to a bona fide occupational qualification. King v. Trans World Airlines, 738 F.2d 255, 258 n.2 (8th Cir. 1984). Similarly, Greene\u2019s questions about whether Barbano\u2019s husband would mind if she had to \u201crun around the country with men,\u201d and that he would not want his wife to do it, were discriminatory, since once again the questions were unrelated to bona fide occupational qualifications. Hopkins<\/em>, at 1786.<\/p>\n

          Moreover, the import of Greene\u2019s discriminatory questions was substantial, since apart from one question about her qualifications, none of the interviewers asked Barbano about other areas that allegedly formed the basis for selecting a candidate. Thus, Greene\u2019s questioning constituted virtually the entire interview, and so the district court properly found that the interview itself was discriminatory.<\/p>\n

          Next, given the discriminatory tenor of the interview, and the acquiescence of the other Committee members to Greene\u2019s line of questioning, it follows that the judge could find that those present at the interview, and not merely Greene, discriminated against Barbano. Judge McAvoy pointed out that the Chairman of the Committee, Newbold, thought Greene\u2019s discriminatory questions were relevant. Significantly, Barbano protested that Greene\u2019s questions were discriminatory, but no one agreed with her or told her that she need not answer. Indeed, no one even attempted to steer the interview in another direction. This knowing and informed toleration of discriminatory statements by those participating in the interview constitutes evidence of discrimination by all those present. That each member was independently elected to the Board does not mean that the Committee itself was unable to control the course of the interview. The Committee had a choice of how to conduct the interview, and the court could find that the Committee exercised that choice in a plainly discriminatory fashion.<\/p>\n

          This discrimination directly affected the hiring decision. At the end of the interviewing process, the interviewers evaluated the candidates, and on that basis submitted a recommendation as to which candidate to hire for the position. \u201cEvaluation does not occur in a vacuum. By definition, when evaluating a candidate to fill a vacant position, one compares that candidate against other eligible candidates.\u201d Berl v. County of Westchester, 849 F.2d 712, 715 (2d Cir. 1988). Appellants stipulated that Barbano was qualified for the position. Again, because Judge McAvoy could find that the evaluation of Barbano was biased by gender discrimination, the judge could also find that the Committee\u2019s recommendation to hire Wagner, which was the result of a weighing of the relative merits of Barbano, Wagner and the other eligible candidates, was necessarily tainted by discrimination.<\/p>\n

          The Board in turn unanimously accepted the Committee\u2019s recommendation to hire Wagner, and so the Board\u2019s hiring decision was made in reliance upon a discriminatory recommendation. The Supreme Court in Hopkins v. Price Waterhouse found that a collective decision-making body can discriminate by relying upon discriminatory recommendations, and we are persuaded that the reasoning in that case applies here as well.<\/p>\n

          In Hopkins\u2019 case against Price Waterhouse, Ann Hopkins, a candidate for partnership at the accounting firm of Price Waterhouse, alleged that she was refused admission as a partner because of sex discrimination. Hopkins\u2019s evidence of discrimination consisted largely of evaluations made by various partners. Price Waterhouse argued that such evidence did not prove that its internal Policy Board, which was the effective decision-maker as to partnership in that case, had discriminated. The Court rejected that argument and found the evidence did establish discrimination:<\/p>\n

          Hopkins showed that the partnership solicited evaluations from all of the firm\u2019s partners; that it generally relied very heavily on such evaluations in making its decision; that some of the partners\u2019 comments were the product of [discrimination]; and that the firm in no way disclaimed reliance on those particular comments, either in Hopkins\u2019 case or in the past. Certainly, a plausible\u2014and, one might say, inevitable\u2014conclusion to draw from this set of circumstances is that the Policy Board in making its decision did in fact take into account all of the partners\u2019 comments, including the comments that were motivated by [discrimination].<\/p>\n

          Hopkins<\/em>, at 1794.<\/p><\/blockquote>\n

          In a very significant sense, Barbano presents an even stronger case of discrimination because the only recommendation the Board relied upon here was discriminatory, whereas in Price Waterhouse, not all of the evaluations used in the decision-making process were discriminatory. On the other hand, it is true that the discriminatory content of some of the evaluations in Price Waterhouse was apparent from reading them, whereas here, the recommendation was embodied in a resolution to the Board and a reading of the resolution would not reveal that it was tainted by discrimination. Nonetheless, the facts in this case show that the Board was put on notice before making the appointment that the Committee\u2019s recommendation was biased by discrimination.<\/p>\n

          Barbano was a member of the public in attendance at the Board meeting in March 1980 when the Board voted to appoint Wagner. Before the Board adopted the resolution appointing Wagner, Barbano objected and asked the Board if male applicants were asked the questions she was asked during the interview. At this point, the entire Board membership was alerted to the possibility that the Committee had discriminated against Barbano during her interview. The Committee members did not answer the question, except for Newbold, who evaded the issue by stating that he did not ask such questions. The Board\u2019s ability to claim ignorance at this point was even further undermined by the fact that the Chairman of the Board, Callahan, was present at many of the interviews, including Barbano\u2019s, in his role as Chairman of the Board. Callahan did not refute Barbano\u2019s allegations, implying that they were worthy of credence, and none of the Board members even questioned Callahan on the matter.<\/p>\n

          It is clear that those present understood Barbano was alleging that she had been subjected to discrimination during her interview. John Patane, a member of the Board who had not interviewed Barbano, asked Barbano whether she was implying that Madison County was not an equal opportunity employer. Barbano said yes. Patane said the County already had their \u201ctoken woman.\u201d Callahan apologized to Barbano for \u201cany improper remarks that may have been made,\u201d but an apology for discrimination does not constitute an attempt to eliminate the discrimination from the hiring decision. Even though the Board was aware of possible improprieties, it made no investigation whatsoever into the allegations and did not disclaim any reliance upon the discrimination. In short, the circumstances show the Board was willing to rely on the Committee\u2019s recommendation even if Barbano had been discriminated against during her interview. On these facts, it was not clearly erroneous for the district court to conclude that Barbano sustained her burden of proving discrimination by the Board.<\/p>\n<\/div>\n

          \n

          B. The Employer\u2019s Burden<\/h4>\n

          Having found that Barbano carried her burden of proving discrimination, the district court then placed the burden on appellants to prove by a preponderance of the evidence that, absent the discrimination, they would not have hired Barbano for the position. Appellants argue that this burden is only placed on an employer if the plaintiff proves discrimination by direct evidence, and since Barbano\u2019s evidence of discrimination was merely circumstantial, the district court erred by placing the burden of proof on them. Appellants, however, misapprehend the nature of Barbano\u2019s proof and thus the governing legal standard.<\/p>\n

          The burden is properly placed on the defendant \u201conce the plaintiff establishes by direct evidence that an illegitimate factor played a motivating or substantial role in an employment decision.\u201d Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989). Thus, the key inquiry on this aspect of the case is whether the evidence is direct, that is, whether it shows that the impermissible criterion played some part in the decision-making process. See Hopkins<\/em>, at 1791; Grant<\/em>, 880 F.2d at 1569. If plaintiff provides such evidence, the fact-finder must then determine whether the evidence shows that the impermissible criterion played a motivating or substantial part in the hiring decision. Grant, 880 F.2d at 1569.<\/p>\n

          As we found above, the evidence shows that Barbano\u2019s gender was clearly a factor in the hiring decision. That the discrimination played a substantial role in that decision is shown by the importance of the recommendation to the Board. As Rafte testified, the Board utilizes a committee system, and so the Board \u201cusually accepts\u201d a committee\u2019s recommendation, as it did here when it unanimously voted to appoint Wagner. Had the Board distanced itself from Barbano\u2019s allegations of discrimination and attempted to ensure that it was not relying upon illegitimate criteria in adopting the Committee\u2019s recommendation, the evidence that discrimination played a substantial role in the Board\u2019s decision would be significantly weakened. The Board showed no inclination to take such actions, however, and in adopting the discriminatory recommendation allowed illegitimate criteria to play a substantial role in the hiring decision.<\/p>\n

          The district court thus properly required appellants to show that the Board would not have hired Barbano in the absence of discrimination. \u201cThe employer has not yet been shown to be a violator, but neither is it entitled to the\u2026presumption of good faith concerning its employment decisions. At this point the employer may be required to convince the fact-finder that, despite the smoke, there is no fire.\u201d Hopkins<\/em>, at 1798-99 (O\u2019Connor, J., concurring).<\/p>\n

          Judge McAvoy noted in his opinion that appellants claimed they chose Wagner over Barbano because he was better qualified in the following areas: (1) interest in veterans\u2019 affairs; (2) experience in the military; (3) tactfulness; and (4) experience supervising an office. The judge found that the evidence before him supported only appellants\u2019 first and second reasons for refusing to hire Barbano, but acknowledged that the Committee members \u201cwere enamored with Wagner\u2019s military record and involvement with veterans\u2019 organizations.\u201d However, neither of these is listed as a job requirement in the job description, although the district court found that membership in a veterans\u2019 organization may indicate an interest in veterans\u2019 affairs. Nonetheless, the district court found that given Barbano\u2019s \u201ceducation and experience in social services,\u201d appellants failed to carry their burden of proving by a preponderance of the evidence that, absent discrimination, they would not have hired Barbano.<\/p>\n

          The district court properly held appellants to a preponderance of the evidence standard. Hopkins<\/em>, 109 S. Ct. at 1795.\u2026<\/p>\n

          At the time of the hiring decision in 1980, Barbano had been a Social Welfare Examiner for Madison County for the three previous years. In this position, she determined the eligibility of individuals for public assistance, medicaid or food stamps, and would then issue or deny the individual\u2019s application based on all federal, state and local regulations pertaining to the program from which the individual was seeking assistance. Barbano was thus familiar with the operation of public assistance programs, knew how to fill out forms relating to benefits and had become familiar with a number of welfare agencies that could be of use to veterans. Barbano was also working towards an Associate Degree in Human Services at the time. Rafte testified that Barbano\u2019s resume was \u201cvery impressive.\u201d Moreover, Barbano, unlike Wagner, was a resident of Madison County, and according to Rafte, a candidate\u2019s residency in the county was considered to be an advantage. Finally, Barbano had also enlisted in the United States Marine Corps in 1976, but during recruit training had been given a vaccine that affected her vision. She had received an honorable discharge shortly thereafter.<\/p>\n

          Wagner had nine years experience as an Air Force Personnel Supervisor, maintaining personnel records, had received a high school equivalency diploma and took several extension classes in management. He had been honorably discharged from the Air Force in 1965 with the rank of Staff Sergeant. Wagner was a member of the American Legion, and his application for the position included recommendations from two American Legion members. However, for the six years prior to his appointment as Director, Wagner\u2019s sole paid employment was as a school bus driver and part-time bartender at the American Legion. Wagner admitted that before he was hired he had no knowledge of federal, state and local laws, rules and regulations pertaining to veterans\u2019 benefits and services, or knowledge of the forms, methods and procedures used to process veteran benefits claims. Wagner also had not maintained liaison with welfare agencies and was unfamiliar with the various welfare agencies that existed in the county.<\/p>\n

          To be sure, both candidates were qualified for the Director\u2019s position, and it is not our job\u2014nor was it the district court\u2019s\u2014to decide which one was preferable. However, there is nothing to indicate that Judge McAvoy misconceived his function in this phase of the case, which was to decide whether appellants failed to prove by a preponderance of the evidence that they would not have hired Barbano even if they had not discriminated against her. The judge found that defendants had not met that burden. We must decide whether that finding was clearly erroneous, and we cannot say that it was.<\/p>\n

          \n

          Case Questions<\/h3>\n
            \n
          1. Madison County contended that Barbano needed to provide \u201cdirect evidence\u201d of discrimination that had played a motivating or substantial part in the decision. What would such evidence look like? Is it likely that most plaintiffs who are discriminated against because of their gender would be able to get \u201cdirect evidence\u201d that gender was a motivating or substantial factor?<\/li>\n
          2. The \u201cclearly erroneous\u201d standard is applied here, as it is in many cases where appellate courts review trial court determinations. State the test, and say why the appellate court believed that the trial judge\u2019s ruling was not \u201cclearly erroneous.\u201d<\/li>\n<\/ol>\n<\/div>\n<\/div>\n<\/div>\n
            \n

            Title VII and Hostile Work Environment<\/h2>\n

            Duncan v. General Motors Corporation<\/p>\n

            300 F.3d 928 (8th Cir. 2002)<\/p>\n

            OPINION BY HANSEN, Circuit Judge.<\/p>\n

            The Junior College District of St. Louis (the College) arranged for Diana Duncan to provide in-house technical training at General Motors Corporation\u2019s (GMC) manufacturing facility in Wentzville, Missouri. Throughout her tenure at GMC, Duncan was subjected to unwelcome attention by a GMC employee, James Booth, which culminated in Duncan\u2019s resignation. Duncan subsequently filed this suit under Title VII of the Civil Rights Act and the Missouri Human Rights Act, see 42 U.S.C. \u00a7\u00a7 2000e-2000e-17; Mo. Rev. Stat. \u00a7\u00a7 213.010-213.137,2<\/sup> alleging that she was sexually harassed and constructively discharged. A jury found in favor of Duncan and awarded her $4600 in back pay, $700,000 in emotional distress damages on her sexual harassment claim, and $300,000 in emotional distress damages on her constructive discharge claim. GMC appeals from the district court\u2019s denial of its post trial motion for judgment as a matter of law, and the district court\u2019s award of attorneys\u2019 fees attendant to the post trial motion. We reverse.<\/p>\n

            \n

            I<\/h3>\n

            Diana Duncan worked as a technical training clerk in the high-tech area at GMC as part of the College\u2019s Center for Business, Industry, and Labor program from August 1994 until May 1997. Duncan provided in-house training support to GMC employees.<\/p>\n

            Duncan first learned about the College\u2019s position at GMC from Booth, a United Auto Workers Union technology training coordinator for GMC. Booth frequented the country club where Duncan worked as a waitress and a bartender. Booth asked Duncan if she knew anyone who had computer and typing skills and who might be interested in a position at GMC. Duncan expressed interest in the job. Booth brought the pre-employment forms to Duncan at the country club, and he forwarded her completed forms to Jerry Reese, the manager of operations, manufacturing, and training for the College. Reese arranged to interview Duncan at GMC. Reese, Booth, and Ed Ish, who was Booth\u2019s management counterpart in the high-tech area of the GMC plant, participated in the interview. Duncan began work at GMC in August 1994.<\/p>\n

            Two weeks after Duncan began working at GMC, Booth requested an off-site meeting with her at a local restaurant. Booth explained to Duncan that he was in love with a married coworker and that his own marriage was troubled. Booth then propositioned Duncan by asking her if she would have a relationship with him. Duncan rebuffed his advance and left the restaurant. The next day Duncan mentioned the incident to the paint department supervisor Joe Rolen, who had no authority over Booth. Duncan did not report Booth\u2019s conduct to either Reese (her supervisor) at the College or Ish (Booth\u2019s management counterpart) at GMC. However, she did confront Booth, and he apologized for his behavior. He made no further such \u201cpropositions.\u201d Duncan stated that Booth\u2019s manner toward her after she declined his advance became hostile, and he became more critical of her work. For example, whenever she made a typographical error, he told her that she was incompetent and that he should hire a \u201cKelly Services\u201d person to replace her. Duncan admitted that Booth\u2019s criticisms were often directed at other employees as well, including male coworkers.<\/p>\n

            Duncan testified to numerous incidents of Booth\u2019s inappropriate behavior. Booth directed Duncan to create a training document for him on his computer because it was the only computer with the necessary software. The screen saver that Booth had selected to use on his computer was a picture of a naked woman. Duncan testified to four or five occasions when Booth would unnecessarily touch her hand when she handed him the telephone. In addition, Booth had a planter in his office that was shaped like a slouched man wearing a sombrero. The planter had a hole in the front of the man\u2019s pants that allowed for a cactus to protrude. The planter was in plain view to anyone entering Booth\u2019s office. Booth also kept a child\u2019s pacifier that was shaped like a penis in his office that he occasionally showed to his coworkers and specifically to Duncan on two occasions.<\/p>\n

            In 1995, Duncan requested a pay increase and told Booth that she would like to be considered for an illustrator\u2019s position. Booth said that she would have to prove her artistic ability by drawing his planter. Duncan objected, particularly because previous applicants for the position were required to draw automotive parts and not his planter. Ultimately, Duncan learned that she was not qualified for the position because she did not possess a college degree.<\/p>\n

            Additionally in 1995, Booth and a College employee created a \u201crecruitment\u201d poster that was posted on a bulletin board in the high-tech area. The poster portrayed Duncan as the president and CEO of the Man Hater\u2019s Club of America. It listed the club\u2019s membership qualifications as: \u201cMust always be in control of: (1) Checking, Savings, all loose change, etc.; (2) (Ugh) Sex; (3) Raising children our way!; (4) Men must always do household chores; (5) Consider T.V. Dinners a gourmet meal.\u201d\u2026<\/p>\n

            On May 5, 1997, Booth asked Duncan to type a draft of the beliefs of the \u201cHe-Men Women Hater\u2019s Club.\u201d The beliefs included the following:<\/p>\n

            \u2014Constitutional Amendment, the 19th, giving women [the] right to vote should be repealed. Real He-Men indulge in a lifestyle of cursing, using tools, handling guns, driving trucks, hunting and of course, drinking beer.<\/p>\n

            \u2014Women really do have coodies [sic] and they can spread.<\/p>\n

            \u2014Women [are] the cause of 99.9 per cent of stress in men.<\/p>\n

            \u2014Sperm has a right to live.<\/p>\n

            \u2014All great chiefs of the world are men.<\/p>\n

            \u2014Prostitution should be legalized.<\/p><\/blockquote>\n

            Duncan refused to type the beliefs and resigned two days later.<\/p>\n

            Duncan testified that she complained to anyone who would listen to her about Booth\u2019s behavior, beginning with paint department supervisor Joe Rolen after Booth propositioned her in 1994. Duncan testified that between 1994 and 1997 she complained several times to Reese at the College about Booth\u2019s behavior, which would improve at least in the short term after she spoke with Reese.\u2026<\/p>\n

            Duncan filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC) on October 30, 1997. The EEOC issued Duncan a right to sue notice on April 17, 1998. Alleging sexual harassment and constructive discharge, Duncan filed suit against the College and GMC under both Title VII of the Civil Rights Act and the Missouri Human Rights Act. Duncan settled with the College prior to trial. After the jury found in Duncan\u2019s favor on both counts against GMC, GMC filed a post-trial motion for judgment as a matter of law or, alternatively, for a new trial. The district court denied the motion. The district court also awarded Duncan attorneys\u2019 fees in conjunction with GMC\u2019s post-trial motion. GMC appeals.<\/p>\n<\/div>\n

            \n

            II<\/h3>\n
            \n

            A. Hostile Work Environment<\/h4>\n

            GMC argues that it was entitled to judgment as a matter of law on Duncan\u2019s hostile work environment claim because she failed to prove a prima facie case. We agree.\u2026<\/p>\n

            It is undisputed that Duncan satisfies the first two elements of her prima facie case: she is a member of a protected group and Booth\u2019s attention was unwelcome. We also conclude that the harassment was based on sex.\u2026Although there is some evidence in the record that indicates some of Booth\u2019s behavior, and the resulting offensive and disagreeable atmosphere, was directed at both male and female employees, GMC points to ten incidents when Booth\u2019s behavior was directed at Duncan alone. GMC concedes that five of these ten incidents could arguably be based on sex: (1) Booth\u2019s proposition for a \u201crelationship\u201d; (2) Booth\u2019s touching of Duncan\u2019s hand; (3) Booth\u2019s request that Duncan sketch his planter; (4) the Man Hater\u2019s Club poster; and (5) Booth\u2019s request that Duncan type the He-Men Women Haters beliefs. \u201cA plaintiff in this kind of case need not show\u2026that only women were subjected to harassment, so long as she shows that women were the primary target of such harassment.\u201d We conclude that a jury could reasonably find that Duncan and her gender were the overriding themes of these incidents. The evidence is sufficient to support the jury finding that the harassment was based on sex.<\/p>\n

            We agree, however, with GMC\u2019s assertion that the alleged harassment was not so severe or pervasive as to alter a term, condition, or privilege of Duncan\u2019s employment.\u2026To clear the high threshold of actionable harm, Duncan has to show that \u201cthe workplace is permeated with discriminatory intimidation, ridicule, and insult.\u201d Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993) (internal quotations omitted). \u201cConduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment\u2014an environment that a reasonable person would find hostile or abusive\u2014is beyond Title VII\u2019s purview.\u201d Oncale, 523 U.S. at 81 (internal quotation omitted). Thus, the fourth part of a hostile environment claim includes both objective and subjective components: an environment that a reasonable person would find hostile and one that the victim actually perceived as abusive. Harris, 510 U.S. at 21-22. In determining whether the conduct is sufficiently severe or pervasive, we look to the totality of the circumstances, including the \u201cfrequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee\u2019s work performance.\u201d\u2026These standards are designed to \u201cfilter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.\u201d Faragher v. City of Boca Raton, 524 U.S. 775, 788, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998) (internal quotations omitted).<\/p>\n

            The evidence presented at trial illustrates that Duncan was upset and embarrassed by the posting of the derogatory poster and was disturbed by Booth\u2019s advances and his boorish behavior; but, as a matter of law, she has failed to show that these occurrences in the aggregate were so severe and extreme that a reasonable person would find that the terms or conditions of Duncan\u2019s employment had been altered.\u2026Numerous cases have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here. See, e.g., Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872, 874 (5th Cir.) (holding that several incidents over a two-year period, including the comment \u201cyour elbows are the same color as your nipples,\u201d another comment that plaintiff had big thighs, repeated touching of plaintiff\u2019s arm, and attempts to look down the plaintiff\u2019s dress, were insufficient to support hostile work environment claim), cert. denied, 528 U.S. 963, 145 L. Ed. 2d 308, 120 S. Ct. 395 (1999); Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62 (7th Cir. 1998) (holding conduct insufficient to support hostile environment claim when employee teased plaintiff, made sexual jokes aimed at her, told her not to wave at police officers \u201cbecause people would think she was a prostitute,\u201d commented about low-necked tops, leered at her breasts, and touched her arm, fingers, or buttocks on four occasions), cert. denied, 528 U.S. 988, 145 L. Ed. 2d 367, 120 S. Ct. 450 (1999); Black v. Zaring Homes,, Inc., 104 F.3d 822, 823-24, 826 (6th Cir.) (reversing jury verdict and holding behavior merely offensive and insufficient to support hostile environment claim when employee reached across plaintiff, stating \u201cnothing I like more in the morning than sticky buns\u201d while staring at her suggestively; suggested to plaintiff that parcel of land be named \u201cHootersville,\u201d \u201cTitsville,\u201d or \u201cTwin Peaks\u201d; and asked \u201cweren\u2019t you there Saturday night dancing on the tables?\u201d while discussing property near a biker bar), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (holding no sexual harassment when plaintiff\u2019s supervisor asked plaintiff for dates, asked about her personal life, called her a \u201cdumb blond,\u201d put his hand on her shoulder several times, placed \u201cI love you\u201d signs at her work station, and attempted to kiss her twice at work and once in a bar).<\/p>\n

            Booth\u2019s actions were boorish, chauvinistic, and decidedly immature, but we cannot say they created an objectively hostile work environment permeated with sexual harassment. Construing the evidence in the light most favorable to Duncan, she presented evidence of four categories of harassing conduct based on her sex: a single request for a relationship, which was not repeated when she rebuffed it, four or five isolated incidents of Booth briefly touching her hand, a request to draw a planter, and teasing in the form of a poster and beliefs for an imaginary club. It is apparent that these incidents made Duncan uncomfortable, but they do not meet the standard necessary for actionable sexual harassment. It is worth noting that Duncan fails to even address this component of her prima facie case in her brief. We conclude as a matter of law that she did not show a sexually harassing hostile environment sufficiently severe or pervasive so as to alter the conditions of her employment, a failure that dooms Duncan\u2019s hostile work environment claim. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).<\/p>\n

            For the foregoing reasons, we reverse the district court\u2019s denial of judgment as a matter of law. Because GMC should have prevailed on its post-trial motion, the award of attorneys\u2019 fees is likewise vacated.<\/p>\n

            RICHARD S. ARNOLD, Circuit Judge, dissenting.<\/p>\n

            The Court concludes that the harassment suffered by Ms. Duncan was not so severe or pervasive as to alter a term, condition, or privilege of her employment, and that, therefore, GMC is entitled to judgment as a matter of law on her hostile-work environment and constructive-discharge claims. I respectfully disagree.<\/p>\n

            Ms. Duncan was subjected to a long series of incidents of sexual harassment in her workplace, going far beyond \u201cgender-related jokes and occasional teasing.\u201d Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1988). When the evidence is considered in the light most favorable to her, and she is given the benefit of all reasonable inferences, there is \u201csubstantial evidence to sustain the cause of action.\u201d Stockmen\u2019s Livestock Market, Inc. v. Norwest Bank of Sioux City, 135 F.3d 1236, 1240 (8th Cir. 1998) In Ms. Duncan\u2019s case, a jury reached the conclusion that Mr. Booth\u2019s offensive behavior created a hostile work environment. I believe this determination was reasonable and supported by ample evidence.<\/p>\n

            Ms. Duncan was subjected to a sexual advance by her supervisor within days of beginning her job. This proposition occurred during work hours and was a direct request for a sexual relationship. The Court characterizes this incident as a \u201csingle request,\u201d (but) [t]his description minimizes the effect of the sexual advance on Ms. Duncan\u2019s working conditions. During the months immediately following this incident, Mr. Booth became hostile to Ms. Duncan, increased his criticism of her work, and degraded her professional capabilities in front of her peers. Significantly, there is no suggestion that this hostile behavior occurred before<\/em> Ms. Duncan refused his request for sex. From this evidence, a jury could easily draw the inference that Mr. Booth changed his attitude about Ms. Duncan\u2019s work because she rejected his sexual advance.<\/p>\n

            Further, this sexual overture was not an isolated incident. It was only the beginning of a string of degrading actions that Mr. Booth directed toward Ms. Duncan based on her sex. This inappropriate behavior took many forms, from physical touching to social humiliation to emotional intimidation. For example, Mr. Booth repeatedly touched Ms. Duncan inappropriately on her hand. He publicly singled her out before her colleagues as a \u201cMan Hater\u201d who \u201cmust always be in control of\u201d sex. He required her to choose between drawing a vulgar planter displayed in his office or not being considered for a promotion, an unfair choice that would likely intimidate a reasonable person from seeking further career advancement.<\/p>\n

            The Court cites cases in which our sister Circuits have rejected hostile-work environment claims premised upon facts that the Court determines to be \u201cequally or more egregious\u201d than the conduct at issue here. I do not agree that Ms. Duncan experienced less severe harassment than those plaintiffs. For example, in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993), the plaintiff did not allege that her work duties or evaluations were different because of her sex. This is not the situation Ms. Duncan faced. She was given specific tasks of a sexually charged nature, such as typing up the minutes of the \u201cHe-Man Women Hater\u2019s Club.\u201d Performing this \u201cfunction\u201d was presented to her as a required duty of her job.<\/p>\n

            Also Ms. Duncan was subjected to allegations that she was professionally \u201cincompetent because of her sex.\u201d\u2026She adduced evidence of this factor when she testified that after she rejected his sexual advance, Mr. Booth became more critical of her work. With the request for her to draw the planter for a promotion, Ms. Duncan also faced \u201cconduct that would prevent her from succeeding in the workplace,\u201d a fact that Ms. Shepherd could not point to in her case. Additionally, Ms. Duncan was \u201cpropositioned\u201d to sleep with her employer\u2026a claim not made by Ms. Shepherd.<\/p>\n

            Finally, we note that in Ms. Duncan\u2019s case the harassing acts were directed specifically at her. The Court in Black v. Zaring Homes, 104 F.3d 822, 826 (6th Cir.), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997), stated that the lack of specific comments to the plaintiff supported the conclusion that the defendant\u2019s conduct was not severe enough to create actionable harm. By contrast, in the present case, a jury could reasonably conclude that Ms. Duncan felt particularly humiliated and degraded by Mr. Booth\u2019s behavior because she alone was singled out for this harassment.<\/p>\n

            Our own Court\u2019s Title VII jurisprudence suggests that Ms. Duncan experienced enough offensive conduct to constitute sexual harassment. For example, in Breeding v. Arthur J. Gallagher and Co. we reversed a grant of summary judgment to an employer, stating that a supervisor who \u201cfondled his genitals [**25] in front of\u201d a female employee and \u201cused lewd and sexually inappropriate language\u201d could create an environment severe enough to be actionable under Title VII. 164 F.3d 1151, 1159 (8th Cir. 1999). In Rorie v. United Parcel Service, we concluded that a work environment in which \u201ca supervisor pats a female employee on the back, brushes up against her, and tells her she smells good\u201d could be found by a jury to be a hostile work environment. 151 F.3d 757, 762 (8th Cir. 1998). Is it clear that the women in these cases suffered harassment greater than Ms. Duncan? I think not.<\/p>\n

            We have acknowledged that \u201cthere is no bright line between sexual harassment and merely unpleasant conduct, so a jury\u2019s decision must generally stand unless there is trial error.\u201d Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir. 1998). We have also ruled that \u201conce there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury.\u201d Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir. 1998). The Court admits that Ms. Duncan took subjective offense to Mr. Booth\u2019s behavior and characterizes Mr. Booth\u2019s behavior as \u201cboorish, chauvinistic, and decidedly immature.\u201d Thus, the Court appears to agree that Mr. Booth\u2019s behavior was \u201cimproper conduct.\u201d I believe the Court errs in deciding as a matter of law that the jury did not act reasonably in concluding that Ms. Duncan faced severe or pervasive harassment that created a hostile work environment.<\/p>\n

            Therefore, I dissent from the Court\u2019s conclusion that Ms. Duncan did not present sufficient evidence to survive judgment as a matter of law on her hostile work-environment and constructive-discharge claims.<\/p>\n

            \n

            Case Questions<\/h3>\n
            \n
              \n
            1. Which opinion is more persuasive to you\u2014the majority opinion or the dissenting opinion?<\/li>\n
            2. \u201cNumerous cases have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here.\u201d By what standard or criteria does the majority opinion conclude that Duncan\u2019s experiences were no worse than those mentioned in the other cases?<\/li>\n
            3. Should the majority on the appeals court substitute its judgment for that of the jury?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n<\/div>\n
              \n

              Age Discrimination: Burden of Persuasion<\/h2>\n

              Gross v. FBL Financial Services, Inc.<\/p>\n

              557 U.S. ___ (2009)<\/p>\n

              JUSTICE CLARENCE THOMAS delivered the opinion of the court.<\/p>\n

              \n

              I<\/h3>\n

              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\u2019 job responsibilities to a newly created position\u2014claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL\u2019s reallocation of his former job responsibilities to Kneeskern.<\/p>\n

              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 \u201cbecause of such individual\u2019s age.\u201d 29 U. S. C. \u00a7623(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\u2019 reassignment was part of a corporate restructuring and that Gross\u2019 new position was better suited to his skills.<\/p>\n

              At the close of trial, and over FBL\u2019s 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 \u201cdemoted [him] to claims projec[t] coordinator\u201d and that his \u201cage was a motivating factor\u201d in FBL\u2019s decision to demote him. The jury was further instructed that Gross\u2019 age would qualify as a \u201c\u2018motivating factor,\u2019 if [it] played a part or a role in [FBL]\u2019s decision to demote [him].\u201d The jury was also instructed regarding FBL\u2019s burden of proof. According to the District Court, the \u201cverdict must be for [FBL]\u2026if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age.\u201d Ibid.<\/em> The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. 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<\/em> v. Hopkins<\/em>, 490 U. S. 228 (1989). In Price Waterhouse<\/em>, this Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations\u2014i.e.<\/em>, a \u201cmixed-motives\u201d case. 490 U. S., at 232, 244\u2013247 (plurality opinion). The Price Waterhouse<\/em> decision was splintered. Four Justices joined a plurality opinion, and three Justices dissented. Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a \u201cmotivating\u201d or a \u201c \u2018substantial\u2019 \u201c factor in the employer\u2019s 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. Justice O\u2019Connor further found that to shift the burden of persuasion to the employer, the employee must present \u201cdirect evidence that an illegitimate criterion was a substantial factor in the [employment] decision.\u201d\u2026<\/p>\n

              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.<\/em> 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 \u201cprov[ing] that age was the determining factor in FBL\u2019s employment action.\u201d<\/p>\n

              We granted certiorari, 555 U.S. ___ (2008), and now vacate the decision of the Court of Appeals.<\/p>\n<\/div>\n

              \n

              II<\/h3>\n

              The parties have asked us to decide whether a plaintiff must \u201cpresent direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.\u201d 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. We hold that it does not.<\/p>\n

              \n

              A<\/h4>\n

              Petitioner relies on this Court\u2019s 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.<\/p>\n

              In Price Waterhouse<\/em>, a plurality of the Court and two Justices concurring in the judgment determined that once a \u201cplaintiff in a Title VII case proves that [the plaintiff\u2019s 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.\u201d 490 U. S., at 258; see also id.<\/em>, at 259\u2013260 (opinion of White, J.); id.<\/em>, at 276 (opinion of O\u2019Connor, J.). But as we explained in Desert Palace, Inc.<\/em> v. Costa<\/em>, 539 U. S. 90, 94\u201395 (2003), Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was \u201ca motivating factor\u201d for an adverse employment decision. See 42 U. S. C. \u00a72000e\u20132(m) (providing that \u201can unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor<\/em> for any employment practice, even though other factors also motivated the practice\u201d (emphasis added))\u2026<\/p>\n

              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 \u201cmust be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.\u201d Unlike Title VII, the ADEA\u2019s 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 \u00a7\u00a72000e\u20132(m) and 2000e\u20135(g)(2)(B), even though it contemporaneously amended the ADEA in several ways.\u2026<\/p>\n

              We cannot ignore Congress\u2019 decision to amend Title VII\u2019s 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.\u2026As a result, the Court\u2019s interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace<\/em> and Price Waterhouse<\/em>.<\/p>\n<\/div>\n

              \n

              B<\/h4>\n

              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. \u201cStatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.\u201d\u2026The ADEA provides, in relevant part, that \u201c[i]t shall be unlawful for an employer\u2026to 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<\/em> such individual\u2019s age.\u201d 29 U. S. C. \u00a7623(a)(1) (emphasis added).<\/p>\n

              The words \u201cbecause of\u201d mean \u201cby reason of: on account of.\u201d Webster\u2019s Third New International Dictionary 194 (1966); see also Oxford English Dictionary 746 (1933) (defining \u201cbecause of\u201d to mean \u201cBy reason of<\/em>, on account of<\/em>\u201d (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining \u201cbecause\u201d to mean \u201cby reason; on account\u201d). Thus, the ordinary meaning of the ADEA\u2019s requirement that an employer took adverse action \u201cbecause of\u201d age is that age was the \u201creason\u201d that the employer decided to act.\u2026To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the \u201cbut-for\u201d cause of the employer\u2019s adverse decision.\u2026<\/p>\n

              It follows, then, that under \u00a7623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the \u201cbut-for\u201d cause of the employer\u2019s adverse action. Indeed, we have previously held that the burden is allocated in this manner in ADEA cases. See Kentucky Retirement Systems<\/em> v. EEOC<\/em>, 554 U. S. ____. And nothing in the statute\u2019s text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is \u201csilent on the allocation of the burden of persuasion,\u201d we \u201cbegin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.\u201d Schaffer<\/em> v. Weast<\/em>, 546 U. S. 49, 56 (2005)\u2026<\/p>\n

              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 \u201cbut-for\u201d cause of the challenged employer decision.<\/p>\n<\/div>\n<\/div>\n

              \n

              III<\/h3>\n

              Finally, we reject petitioner\u2019s contention that our interpretation of the ADEA is controlled by Price Waterhouse<\/em>, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims. 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 instance.<\/p>\n

              Whatever the deficiencies of Price Waterhouse<\/em> 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.\u2026Thus, even if Price Waterhouse<\/em> was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims.<\/p>\n<\/div>\n

              \n

              IV<\/h3>\n

              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 \u201cbut-for\u201d 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.<\/p>\n

              It is so ordered.<\/p>\n

              \n

              Case Questions<\/h3>\n
                \n
              1. What is the practical effect of this decision? Will plaintiffs with age-discrimination cases find it harder to win after Gross<\/em>?<\/li>\n
              2. As Justice Thomas writes about it, does \u201cbut-for\u201d cause here mean the \u201csole cause\u201d? Must plaintiffs now eliminate any other possible cause in order to prevail in an ADEA lawsuit?<\/li>\n
              3. Based on this opinion, if the employer provides a nondiscriminatory reason for the change in the employee\u2019s status (such as \u201ccorporate restructuring\u201d or \u201cbetter alignment of skills\u201d), does the employer bear any burden of showing that those are not just words but that, for example, the restructuring really does make sense or that the \u201cskills\u201d really do line up better in the new arrangement?<\/li>\n
              4. If the plaintiff was retained at the same salary as before, how could he have a \u201cdiscrimination\u201d complaint, since he still made the same amount of money?<\/li>\n
              5. The case was decided by a 5-4 majority. A dissent was filed by Justice Stevens, and a separate dissent by Justice Breyer, joined by Justices Ginsburg and Souter. You can access those at http:\/\/www.law.cornell.edu\/supct\/pdf\/08-441P.ZD1<\/a>.<\/li>\n<\/ol>\n<\/div>\n<\/div>\n<\/div>\n
                \n

                Disability Discrimination<\/h2>\n

                Toyota v. Williams<\/p>\n

                534 U.S. 184 (2000)<\/p>\n

                \n

                Factual Background<\/h3>\n

                Ella Williams\u2019s job at the Toyota manufacturing plant involved using pneumatic tools. When her hands and arms began to hurt, she consulted a physician and was diagnosed with carpal tunnel syndrome. The doctor advised her not to work with any pneumatic tools or lift more than twenty pounds. Toyota shifted her to a different position in the quality control inspection operations (QCIO) department, where employees typically performed four different tasks. Initially, Williams was given two tasks, but Toyota changed its policy to require all QCIO employees to rotate through all four tasks. When she performed the \u201cshell body audit,\u201d she had to hold her hands and arms up around shoulder height for several hours at a time.<\/p>\n

                She soon began to experience pain in her neck and shoulders. When she asked permission to do only the two tasks that she could perform without difficulty, she was refused. According to Toyota, Williams then began missing work regularly.<\/p>\n

                In 1997, Toyota Motor Manufacturing, Kentucky, Inc. terminated Ella Williams, citing her poor attendance record. Subsequently, claiming to be disabled from performing her automobile assembly line job by carpal tunnel syndrome and related impairments, Williams sued Toyota for failing to provide her with a reasonable accommodation as required by the Americans with Disabilities Act (ADA) of 1990.<\/p>\n

                Granting Toyota summary judgment, the district court held that Williams\u2019s impairment did not qualify as a disability under the ADA because it had not substantially limited any major life activity and that there was no evidence that Williams had had a record of a substantially limiting impairment. In reversing, the court of appeals found that the impairments substantially limited Williams in the major life activity of performing manual tasks. Because her ailments prevented her from doing the tasks associated with certain types of manual jobs that require the gripping of tools and repetitive work with hands and arms extended at or above shoulder levels for extended periods of time, the appellate court concluded that Williams demonstrated that her manual disability involved a class of manual activities affecting the ability to perform tasks at work.<\/p>\n

                JUSTICE SANDRA DAY O\u2019CONNOR delivered the unanimous opinion of the court.<\/p>\n

                When it enacted the ADA in 1990, Congress found that some 43 million Americans have one or more physical or mental disabilities. If Congress intended everyone with a physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task to qualify as disabled, the number of disabled Americans would surely have been much higher. We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people\u2019s daily lives. The impairments impact must also be permanent or long-term.<\/p>\n

                When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people\u2019s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job. In this case, repetitive work with hands and arms extended at or above shoulder levels for extended periods of time is not an important part of most people\u2019s daily lives. The court, therefore, should not have considered respondent\u2019s inability to do such manual work in or specialized assembly line job as sufficient proof that she was substantially limited in performing manual tasks.<\/p>\n

                At the same time, the Court of Appeals appears to have disregarded the very type of evidence that it should have focused upon. It treated as irrelevant \u201c[t]he fact that [respondent] can\u2026ten[d] to her personal hygiene [and] carr[y]out personal or household chores.\u201d Yet household chores, bathing, and brushing one\u2019s teeth are among the types of manual tasks of central importance to people\u2019s daily lives, and should have been part of the assessment of whether respondent was substantially limited in performing manual tasks.<\/p>\n

                The District Court noted that at the time respondent sought an accommodation from petitioner, she admitted that she was able to do the manual tasks required by her original two jobs in QCIO. In addition, according to respondent\u2019s deposition testimony, even after her condition worsened, she could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house. The record also indicates that her medical conditions caused her to avoid sweeping, to quit dancing, to occasionally seek help dressing, and to reduce how often she plays with her children, gardens, and drives long distances. But these changes in her life did not amount to such severe restrictions in the activities that are of central importance to most people\u2019s daily lives that they establish a manual task disability as a matter of law. On this record, it was therefore inappropriate for the Court of Appeals to grant partial summary judgment to respondent on the issue of whether she was substantially limited in performing manual tasks, and its decision to do so must be reversed.<\/p>\n

                Accordingly, we reverse the Court of Appeals\u2019 judgment granting partial summary judgment to respondent and remand the case for further proceedings consistent with this opinion.<\/p>\n

                \n

                Case Questions<\/h3>\n
                \n
                  \n
                1. What is the court\u2019s most important \u201cfinding of fact\u201d relative to hands and arms? How does this relate to the statutory language that Congress created in the ADA?<\/li>\n
                2. The case is remanded to the lower courts \u201cfor further proceedings consistent with this opinion.\u201d In practical terms, what does that mean for this case?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n
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                  Candela Citations<\/h3>\n\t\t\t\t\t
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                  CC licensed content, Shared previously<\/div>