The U.S. Supreme Court granted certiorari in this case to decide whether direct evidence was necessary ?to ?obtain? a ?mixed-motives ?jury instruction in an ADEA case. ?Instead, five Justices held that a mixed-motives instruction is simply not available in an ADEA period. ?Justice Thomas held that Price Waterhouse was limited to Title VII, and Congress? failure to amend the ADEA as part of the Civil Rights Act of 1991 showed that Congress did not believe mixed-motives should apply to the ADEA. ?The majority held that in an ADEA case a plaintiff must prove that age was ?the but-for cause of the employer?s actions.? ?The majority all but held that the Court would decide Price Waterhouse differently if the case had come before the current Justices. Justice Stevens wrote on behalf of the four dissenters.???? ?He? accused? the? majority? of disregarding precedent and judicial activism.?? He argued that the since the ?because of? statutory language in the ADEA is exactly the same as what the Title VII statutory language was at the time of the? Price? Waterhouse? decision,? Price Waterhouse?s construction of ?because of? should apply to ADEA claims. ?The dissenters would have held that Justice White?s opinion in Price Waterhouse was controlling, not Justice O?Connor?s, and that there never has been a direct- evidence requirement. ?The dissenters would have applied Desert Palace v. Costa to the ADEA.

Three Justices also joined a separate dissent on the fallacy of attempting to prove ?but-for causation.? Justice Breyer endorsed a uniform standard under which a plaintiff would establish an unlawful consideration ?was ??a ?motivating? factor? ?and? the defendant would have the burden of showing it would have taken the same action in any event.?Gross v. FBL Financial Services, Inc., — U.S. —, 129 S. Ct. 2343, 174 L .Ed. 2d 119 (June 18,2009).