Additional Gross Developments on “But-For” Causation

I have previously blogged about Gross here and here and have an article on the firm’s website about Gross here.

In Hunter v. Valley View Local Schools, 579 F.3d 688 (6th Cir. 2009), the Sixth Circuit, relying upon a DOL regulation (29 C.F.R. § 825.220(c)) interpreting the FMLA, found that mixed-motive theory applied to the FMLA. The DOL regulation provides that an employer may not use FMLA leave as a “negative factor” in employment decisions. And because the Sixth Circuit previously found the regulation to be a reasonable interpretation of the FMLA, the Hunter court found that mixed-motive analysis continued to apply. The Hunter court did not, however, apply Gross.

In Rasic v. City of Northlake, 2009 U.S. Dist. LEXIS 88651, at *17 (N.D. Ill. Sept. 25, 2009), an FMLA case, the United States District Court for the Northern District of Illinois noted the following:

“We suspect that there is more than a passing chance that if presented with the question, the Seventh Circuit would find that this statutory formulation [29 U.S.C. § 2615(a)(2) of the FMLA] (“for opposing”) is not distinguishable in any meaningful way from the ADEA formulation (“because of”) that Gross held requires proof of causation.”

The Seventh Circuit in Serafinn v. Local 722, Int’l Bhd. of Teamsters, 2010 U.S. App. LEXIS 5279 (7th Cir. Mar. 12, 2010), in review of a mixed-motive instruction in a retaliation suit brought by a former union member under the Labor-Management Reporting and Disclosure Act, which contains nearly identical statutory language (“for exercising”) to the FMLA. Finding the mixed-motive instruction inappropriate, the court pointed to Webster’s dictionary’s definition of “for”—“because of.” Id. at *5.