Divided Fifth Circuit Holds that Gross Does Not Apply to Title VII Retaliation Claims

In Smith v. Xerox Corp, 2010 U.S. App. LEXIS 6190 (5th Cir. March 24, 2010), Judge Reavley, writing for himself and Judge Wiener, held that the rationale of Gross does not apply to Title VII, specifically to Section 704(a) of Title VII, which is the retaliation provision of that statute. Judge Jolly wrote a vigorous dissent, in which he characterizes as “lame” the majority’s distinction between age discrimination cases under the ADEA and retaliation cases under Title VII. With this decision from the 5th Circuit, there now is a circuit split, with the 7th Circuit having twice stated that “unless a statute… provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden in all suits under federal law.” Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010) (ADA) (citing Fairley v. Andrews, 578 F.3d 518, 525-26, rehearing denied, 2009 U.S. App. LEXIS 21263 (7th Cir. 2009) (42 U.S.C. § 1983)).

See also my previous presentation on Gross.