Tuesday, September 1, 2009

Gross v FBL "but for" Standard Inapplicable to FMLA

The Supreme Court decided Gross v. FBL Financial on June 18, 2009. Of course, Lawffice Space was there... well, not there... but here, online, with a summary of the now-famous ADEA case. Tonight's entry covers a 6th Circuit case applying the lessons from Gross to a Family and Medical Leave Act (FMLA)-based claim. Hunter v. Valley View Local Schools, 08-4109 (August 26, 2009).

1. Gross applied to the ADEA.
Gross was an ADEA case. It held that in ADEA mixed motive cases (where age is one of multiple bases for an adverse employment action) the burden of persuasion does not shift to the employer. Instead, the employee always bears the burden of proving that age was the "but for" cause of the employer's action. This is different from Title VII and ADA cases in which the burden may shift to the employer in mixed motive cases.

2. Gross applied to the Juror Act
Just last week I explained that a District Court had applied Gross to a Juror Act claim and held that the same "but for" standard now applicable to ADEA claims also applied to Juror Act claims. In other words, plaintiffs always have the burden to establish that their employer would not have taken an adverse action "but for" the plaintiff's jury duty.

3. Gross applied to FMLA
In Hunter, the Plaintiff established that her use of FMLA leave was a motivating factor in her employer's decision to place her on involuntary leave. The 6th Circuit applied Gross to the FMLA and guess what? The "but for" standard does not apply! Instead, the mixed motive burden-shifting, applicable to Title VII and ADA claims, applies.

What's the difference between FMLA and the Juror Act (and ADEA)? First, the FMLA does not include the magic "because of" language that the Supreme Court translated into "but for" causation. Second, and perhaps more importantly, Congress delegated to the Department of Labor the job of drafting regulations to implement FMLA. Those regulations read, in part: "employers cannot use the taking of FMLA leave as a negative factor in employment actions...."

It's actually pretty straightforward: If the statutory language (or statutorily authorized regulations) provide that a violation occurs when an impermissible reason is "a negative factor" or "a motivating factor" then mixed-motive burden-shifting is appropriate. If the statute says a violation occurs only when an employer takes an adverse action "because of" an impermissible reason then the Gross "but for" standard applies.

See also Jon Hyman's post on Hunter on the Ohio Employer's Law Blog.