Gross Isn't Too Gross

In Eunice v. Valley View Local Schools, the Sixth Circuit Court of Appeals (Gibbons, J.) held that Gross's preclusion of mixed-motive claims does not apply to FMLA retaliation claims. Specifically, because the FMLA does not contain the ADA's "because of," but instead, in regulation 29 CFR s. 825.220(c) (promulgated by the Department of Labor), uses less stringent words like "negative factor," the Court held that "the FMLA, like Title VII, authorizes claims in which an employer bases an employment decision on both permissible and impermissible factors." (It may be problematic that the Court relied upon regulations, and not the text of the statute. This may explain why the Court went out of its way to note that it had already found the regulation in question to be "reasonable" and "entitled to deferential judicial review.") As such, "if Hunter has presented evidence to establish that Valley View discriminated against her because of her FMLA leave, then the burden shifts to Valley View to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive." The Court ultimately reversed the trial court's grant of summary judgment for Defendant. An extension of Gross to FMLA retaliation claims would have favored employers because it would have required employees to demonstrate that the impermissible motive was the "but for" cause of the employment action.

Click here for a copy of the Court's decision.
Click here for a copy of the FMLA.
Click here for a copy of the regulation.

Does "Because Of" Mean "On the Basis Of"?

In Serwatka v. Rockwell Automation, the Seventh Circuit decided that the ADA does not permit mixed-motive claims. The Court followed the analysis set forth in Gross v. FBL Fin. Servs., Inc., in which the US Supreme Court held that the language of the ADEA required plaintiffs to demonstrate that age was the "but for" cause of the employment decision. As such, plaintiffs cannot rely on a mixed-motive theory when bring age or disability discrimination claims. They can still, of course, rely on mixed-motives in connection with Title VII claims.

Serwatka raises an interesting question, however. Specifically, in footnote 1, the Court notes that its analysis may be different if it were analyzing the ADA as amended by the ADA Amendments Act of 2008. That Act removed "because of" in favor of "on the basis of." According to the Court, "[w]hether 'on the basis of' means anything different from 'because of,' and whether this or any other revision to the statute matters in terms of a mixed-motive claim under the ADA" remains to be seen as they "are not questions that we need to consider in this appeal." As such, it remains to be seen whether a plaintiff may proceed under a mixed-motive theory to establish an ADA claim after passage of the Amendments. Resolving that issue will require determining if "because of" means "on the basis of."



Click here for a copy of the ADA Amendments Act of 2008.

Click here for a copy of the Court's decision.