Arguing that a plaintiff who alleges that his employer retaliated against him for taking leave under the federal Family and Medical Leave Act must prove that his leave was the but-for cause of the alleged retaliation
This case raises an issue of first impression in the First Circuit in an important area of employment law. In 2013, invoking traditional principles of tort law, the Supreme Court declared that the default rule is that “federal statutory claims of workplace discrimination” must be proven by but-for causation, i.e., it must be shown that the wrong would not have occurred but for the plaintiff’s protected status or conduct. See University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2525 (2013).* Since then, outside of Title VII, lower courts have shown reluctance to take the Supreme Court at its word, continuing to allow liability to be established when an improper motivating factor has been shown to have played a role in the employer’s decision, even though the factor was not the but-for cause of it.
In this case, a federal district court judge, faced with the task of deciding the causation standard for a retaliation claim arising under the Family and Medical Leave Act, declined to follow the teaching of Nassar; in the mistaken belief that the act is ambiguous on this point, he deferred to a U.S. Dept. of Labor regulation that adopts motivating-factor causation. That standard of causation is clearly wrong. Because Nassar makes but-for causation the default in the absence of statutory language to the contrary, even statutory silence on the subject of causation will not render a statute ambiguous; it merely signals that but-for causation is to be applied. Moreover, so-called Chevron deference to an agency is proper only when the language of a statute is ambiguous, and here the statute is not ambiguous.
Although the defendant employer is the U.S. Postal Service (USPS), an independent agency of the federal government, the law in question applies equally to private businesses, and therefore the outcome of the case should be of concern to NELF and its supporters in the business and legal communities.
In its amicus brief filed in support of the employer in this case, NELF has presented detailed arguments to supplement and strengthen the Post Office's argument that Nassar governs this case. Simply put, NELF makes two points. First, as NELF explains, Nassar establishes that but-for causation is an unspoken background principle of federal legislation and so does not have to be signaled by any special words. To the contrary, it is any other standard that must be clearly stated in a statute. Second, NELF demonstrates that the district court erred in declining to apply Nassar and in finding that the causation required for an FMLA retaliation claim is ambiguous in the statute. NELF argues that but-for causation is the standard to be applied in this case despite the fact that the statute is silent on the issue because, as Nassar stated, but-for causation is a presumption of federal legislation. In making its arguments, NELF rebuts, point for point, the trial judge’s reasons for believing the statute ambiguous and for declining to apply the teachings of Nassar.
*NELF filed an amicus brief in Nassar.
This case raises an issue of first impression in the First Circuit in an important area of employment law. In 2013, invoking traditional principles of tort law, the Supreme Court declared that the default rule is that “federal statutory claims of workplace discrimination” must be proven by but-for causation, i.e., it must be shown that the wrong would not have occurred but for the plaintiff’s protected status or conduct. See University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2525 (2013).* Since then, outside of Title VII, lower courts have shown reluctance to take the Supreme Court at its word, continuing to allow liability to be established when an improper motivating factor has been shown to have played a role in the employer’s decision, even though the factor was not the but-for cause of it.
In this case, a federal district court judge, faced with the task of deciding the causation standard for a retaliation claim arising under the Family and Medical Leave Act, declined to follow the teaching of Nassar; in the mistaken belief that the act is ambiguous on this point, he deferred to a U.S. Dept. of Labor regulation that adopts motivating-factor causation. That standard of causation is clearly wrong. Because Nassar makes but-for causation the default in the absence of statutory language to the contrary, even statutory silence on the subject of causation will not render a statute ambiguous; it merely signals that but-for causation is to be applied. Moreover, so-called Chevron deference to an agency is proper only when the language of a statute is ambiguous, and here the statute is not ambiguous.
Although the defendant employer is the U.S. Postal Service (USPS), an independent agency of the federal government, the law in question applies equally to private businesses, and therefore the outcome of the case should be of concern to NELF and its supporters in the business and legal communities.
In its amicus brief filed in support of the employer in this case, NELF has presented detailed arguments to supplement and strengthen the Post Office's argument that Nassar governs this case. Simply put, NELF makes two points. First, as NELF explains, Nassar establishes that but-for causation is an unspoken background principle of federal legislation and so does not have to be signaled by any special words. To the contrary, it is any other standard that must be clearly stated in a statute. Second, NELF demonstrates that the district court erred in declining to apply Nassar and in finding that the causation required for an FMLA retaliation claim is ambiguous in the statute. NELF argues that but-for causation is the standard to be applied in this case despite the fact that the statute is silent on the issue because, as Nassar stated, but-for causation is a presumption of federal legislation. In making its arguments, NELF rebuts, point for point, the trial judge’s reasons for believing the statute ambiguous and for declining to apply the teachings of Nassar.
*NELF filed an amicus brief in Nassar.
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