Currently, retaliation is the most commonly-filed complaint with the Equal Employment Opportunity Commission (“EEOC”). In 2016, retaliation charges accounted for over 42,000 charges, nearly 46% of the annual total. At the local level, retaliation charges made up 39.2% of the Massachusetts Commission Against Discrimination’s (“MCAD”) filings. Despite the popularity of retaliation claims, legal questions about proving causation continue to linger.
How does an employee prove a claim of retaliation?
Most anti-discrimination laws, such as the Family Medical Leave Act (“FMLA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), contain rules preventing employers from retaliating against employees for pursuing their rights under those laws – i.e., for engaging in “protected activity.” To prove a case of retaliation, an employee must show that s/he: (1) engaged in protected conduct; (2) suffered an adverse employment action, and; (3) that there was a causal connection between the protected activity and the adverse employment action.
Because the first two elements are relatively straightforward, the main issue in most retaliation cases is whether the protected activity caused the adverse employment action. Courts generally recognize two different methods of proving causation: the “but-for” causation standard and the “mixed motives” causation standard. The but-for standard requires an employee to show that protected activity was the only reason the employer took the challenged employment action; in other words, that “but for” the protected activity, the employee wouldn’t have been terminated, demoted, denied a promotion, etc. By contrast, in cases where the mixed motives standard (also known as the “motivating factor” or “negative factor” standard) applies, all the employee has to show is that the protected activity was just one of the reasons their employer took the challenged employment action. If the employee shows that their protected activity played a role – was a motivating factor – in the challenged employment action, then the employer will be liable, unless the employer can prove that it would have made the same decision even if the protected activity had not been considered.
Which causation standard will be used depends on the applicable law and the type of claim alleged. For example, the United States Supreme Court has ruled that causation in certain Age Discrimination in Employment Act (“ADEA”) claims is analyzed using the mixed motives standard, while causation in retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) is analyzed using the but-for standard. However, the Supreme Court has yet to address how causation should be analyzed for claims alleging retaliation under the FMLA.
Reasonable minds may differ
When legislators write and pass laws, they often do not write the “nitpicky” details of the laws themselves. Instead, they delegate the power to create rules and regulations to the federal agency responsible for enforcing the law. These rules and regulations frequently provide agency interpretation of language that may not be clear from the language of the statute itself. In the case of the FMLA, it is the U.S. Department of Labor (“DOL”) that has issued regulations implementing the FMLA. Those regulations prohibit employers from “us[ing] the taking of FMLA leave as a negative factor in employment actions.” Thus, the DOL applies the mixed motives standard in FMLA retaliation claims.
But that doesn’t resolve the issue. Although courts generally are required to defer to an agency’s interpretation of the law, they do not have to follow the agency’s interpretation if the court determines the interpretation is unreasonable. And that is exactly what happened in Gourdeau v. City of Newton, a case decided last month by the United States District Court for the District of Massachusetts. The court in Gourdeau looked to legal precedent, the text of the FMLA, and the history and public policy surrounding the FMLA and related anti-discrimination laws, and concluded that the DOL’s regulation is “an impermissible construction of the FMLA.” The court held that the but-for standard should be applied in FMLA retaliation cases, contradicting a 2016 case from the District of Massachusetts that applied the mixed motive standard.
Since district court decisions create non-binding precedent (i.e., judges deciding future cases are not required to rule the same as the earlier decisions), and the First Circuit Court of Appeals has not decided this issue, uncertainty remains as to which causation test will be applied in any given FMLA retaliation case. However, the Gourdeau decision includes a thorough and well-reasoned analysis supporting the but-for standard which will be useful to employers seeking to apply the standard. It may also pave the way for some First Circuit precedent, but since the Court of Appeals declined to decide the issue in a case decided just this past December (Chase v. U.S. Postal Service), how soon that will happen remains to be seen.