II. Analysis
A. The Meaning Of Because
As some commentators have noted, the confusion created by Price and Gross, can be summarized by determining if Price applied to all of Title VII.[i]In his comment, Andrew Kenny similarly analyzes the history of burden shifting through the lens of Price and Gross. Kenny framed the question as “whether Price Waterhouse, at the time it was decided, applied to all of Title VII or only the discrimination provision.”[ii]To answer this question, Kenny first determines what the result would be if Price did apply to all of Title VII.[iii]His first assertion is if Price did apply to all of Title VII, then the only way to limit Price’s effect would be for Congress to affirmatively change the text of each section of Title VII, or for the Supreme Court to overrule Price, neither of which has occurred.[iv]However, if Price did not apply to all of Title VII then the retaliation section would be a blank slate, with neither Gross or Price directly applying. Instead, the analysis used by the Court in Gross would be relevant as a guide.[v]To make the final determination of if Pricecontrolled all of Title VII, Kenny relied on the fact that Price’s reasoning was based on the shared legislative history of the Title, and more specifically, the two sections of discrimination and retaliation are conceptually linked.[vi]Less convincingly, Kenny points out that Grossimplicitly acknowledged that Pricecontrolled all of Title VII.[vii]
[i] Kenny, supra note 14, at 1048.
[ii] *Id.*
[iii] Id. at 1049-53.
[iv] *Id.*
[v] Id. at 1053-55.
[vi] Id. at 1055-57.
[vii] Id. at 1059.