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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations and healthful working conditions by alerting the agency to potential hazards that may not have been otherwise discovered and, thus, allowing those hazards to be corrected.
Congress also included an antiretaliation colloquially whistleblower provision in the Act to protect individual employees from retaliation for reporting safety deficiencies or participating in OSH Act proceedings. 29 U.S.C. 660c1. This provision, which is included in section 11c1, provides that no person may discharge or otherwise discriminatein other words, take an adverse action against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Act, or has testified or was about to testify in any such proceeding, or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by the Act. 29 U.S.C.
660c1.
Section 11c2 contains the remedies for any such retaliation. Specifically, section 11c2 provides that if an employee believes that they have been discharged, or otherwise discriminated against, in violation of section 11c1, such an employee may file a complaint with the Secretary. 29 U.S.C. 660c2.
The Secretary, upon receipt of such a complaint, shall cause such investigation to be made as he deems appropriate, and if upon investigation, the Secretary determines that section 11c has been violated, the Secretary shall bring suit in district court against any person who discharges or discriminates against any employee for the exercise of protected rights under the OSH Act. 29 U.S.C. 660c2.
Section 11c2 also provides district courts with jurisdiction over such actions and empowers them for cause shown to order all appropriate relief, including rehiring or reinstatement of the employee to his or her former position with back pay. 29 U.S.C.
660c2.
In 1973, OSHA issued rules implementing and interpreting section 11c. 38 FR 2681 Jan. 29, 1973. The rules were published in 29 CFR part 1977. Their purpose was to make available in one place interpretations of section 11c which guide the Secretary in carrying out the provision unless and until otherwise directed by authoritative decisions of the courts, or concluding, upon reexamination of an interpretation, that it is incorrect. 29
CFR 1977.2.
As noted above, section 11c protects employees from retaliation, i.e., adverse action, for engaging in certain
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delineated activities. See 29 CFR 1977.3
listing activities protected by section 11c. Those activities are known as protected activities. However, as discussed in 29 CFR 1977.6a, adverse actions taken by an employer may be predicated upon nondiscriminatory grounds and such actions would not necessarily violate section 11c. Or, put another way, section 11c of the OSH
Act does not prohibit an employer from discharging or disciplining an employee for engaging in unprotected activities, i.e., discharge or discipline for legitimate reasons or non-prohibited considerations. See 29 CFR 1977.6a.
Section 1977.6b recognizes that an employers adverse action against an employee may have more than one cause. For example, an employers termination of an employee may be motivated in part by the employees complaint about an unsafe workplace condition and in part by the employees poor work performance. As stated in section 1977.6b, an employers mixed motivation for an adverse action does not necessarily invalidate an employees section 11c complaint. See 29 CFR
1977.6b To establish a violation of section 11c, an employees engagement in protected activity need not be the sole consideration behind discharge or other adverse action..
Section 1977.6b provided two ways in which a causal connection between protected activity and adverse action could be established: 1 If protected activity was a substantial reason for the adverse action; or 2 if the adverse action would not have taken place but for engagement in protected activity. In support of this two-pronged test, the regulation cited two court of appeals decisions finding violations of the whistleblower provision of the Fair Labor Standards Act, 29 U.S.C.
215a3, prohibiting discharge or other discrimination against an employee because such employee has filed a complaint under or related to that statute or engaged in related protected activities. Mitchell v. Goodyear Tire &
Rubber Co., 278 F.2d 562, 565 8th Cir.
1960 employee would not have been fired but for his complaint to the Wage-Hour Division; Goldberg v. Bama Mfg. Corp., 302 F.2d 152 5th Cir. 1962.
Since the issuance of the section 11c interpretive rules in 1973, the test under other statutes for determining whether an adverse action occurred because of a protected activity, i.e., the causation test, has gone through a number of changes. In 2009, the Supreme Court considered the causation test under the Age Discrimination in Employment Act ADEA, which makes it unlawful for an employer to take adverse action against
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an employee because of such individuals age. 29 U.S.C. 623a;
Gross v. FBL Financial Services, Inc., 557 U.S. 167 2009. In so doing, the Court explained that the ordinary meaning of the ADEAs requirement that an employer took adverse action because of age is that age was the reason that the employer decided to act. Therefore, the Court held that to establish a disparate treatment claim under the plain language of the ADEA, the plaintiff had to prove that age was the but for cause of the employers adverse action; the burden of persuasion does not shift to the employer to show that it would have taken the same action regardless of age. Gross, 557 U.S. at 17577, 180.
The Gross decision was followed in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 2013. In that case, the Supreme Court interpreted the antiretaliation provision of Title VII, which bans discrimination against an employee because he or she has opposed any practice made unlawful by Title VII or engaged in related activities.
In the decision, the Court relied first on the default rule in tort law which applies absent contrary statutory language, i.e., that a plaintiff must show that but for the defendants conduct the harm would not have occurred. Nassar, 570 U.S. at 348, 350. The Court then reiterated what it had held in Gross that the ordinary meaning of the word because of means that the plaintiff must prove but-for causation. Id. at 350.
It emphasized that although Gross concerned an interpretation of the ADEA, it had some persuasive force because of its textual basis and the concern in both cases with the meaning of the word because. Id. at 351.
Therefore, the Court held that because there was no meaningful difference between the text in the ADEA and that in the Title VII anti-retaliation provision, the proper conclusion, as in Gross, is that the Title VII antiretaliation provision requires a showing of but-for causation. Id. at 352.
The Supreme Court has continued to apply the but for formulation as the proper test for causation for a variety of statutes in which causation is an element. For example, most recently, in Bostock v. Clay County, Georgia, 140 S
Ct. 1731, 1739 2020, the Supreme Court held that the phrase because of means but-for causation and then offered more direction on the meaning of the but-for causation standard. The dispute in Bostock arose under Title VII
of the Civil Rights Act of 1964, which makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
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