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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Rules and Regulations
against any individual, because of such individuals race, color, religion, sex, or national origin. 42 U.S.C. 2000e 2a1. Citing Nassar, the Supreme Court reiterated that Title VIIs because of test incorporates the simple and traditional standard of but-for causation. Bostock, 140 S Ct. at 1738.
The Court explained that but-for causation is established whenever a particular outcome would not have happened but for the purported cause. Id. at 1739 citing Gross, 557 U.S.
at 176. Put another way, the Court added, the but-for causation test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
Id. at 1739. Importantly, the Court made clear that events often have multiple but-for causes. Id. The but-for causation test does not require that the prohibited factor be the sole or primary reason for the adverse action. Id.
Federal courts of appeals have followed Nassar and Gross in applying the but-for causation test under other statutes using the word because. See, e.g., Lestage v. Coloplast Corp., 982 F.3d 37, 46 1st Cir. 2020 joining the Third, Fourth, Fifth, and Eleventh Circuit Courts of Appeals in holding that the False Claims Acts prohibition against discriminating against an employee because of that employees protected conduct is a but-for standard; Natofsky v. City of New York, 921 F.3d 337, 347
50, 348 2d Cir. 2019, cert. denied, 140
S Ct. 2668 2020 holding that the Rehabilitation Act incorporates by reference the Americans with Disabilities Acts ADA but-for causation standard; Gross and Nassar dictate our decision here.; Acosta v.
Brain, 910 F.3d 502, 514 9th Cir. 2018
assuming, without deciding, that the but-for causation standard applies to cases under section 510 of the Employee Retirement Income Security Act, which uses the word because.
As noted above, section 11c1 of the OSH Act provides that no person shall discharge or in any manner discriminate against any employee because such employee has engaged in certain protected activities. 29 U.S.C.
660c1. After the Nassar decision, OSHA recognized that the correct causation standard under this provision would be but-for. Therefore, OSHA
included the but-for causation standard in the 2016 revision to the Whistleblower Investigations Manual WIM.1 See https
1 The WIM outlines procedures, and other information relative to the handling of retaliation complaints under the various whistleblower statutes delegated to OSHA.

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www.whistleblowers.gov/manual.
Specifically, the agency revised the WIM
to require that in a section 11c case OSHA must have reasonable cause to believe that the employer would not have carried out the adverse action but for the protected activity Chapter 3
par. V.B.i..
Similarly, OSHA included the but-for causation standard in the 2018 OSHA
Fact Sheet, Filing Whistleblower Complaints under Section 11c of the OSH Act of 1970. See https
www.osha.gov/Publications/
OSHA3812.pdf. The Fact Sheet states that a person taking adverse action against an employee may be found to have violated section 11c if the employee would not have experienced the adverse action but for protected activity. OSHAs Investigators Desk Aid to the Occupational Safety and Health Act OSH Act Whistleblower Provision, issued in 2019, also states that the Secretary has the burden of proving butfor causation in a section 11c case. See https www.osha.gov/sites/default/
files/11cDeskAid.pdf.
Discussion of Update to 29 CFR
1977.6b This final interpretive rule updates OSHAs 1973 section 11c interpretive rule at 29 CFR 1977.6b to bring it in line with the Supreme Courts holdings in Gross, Nassar, and Bostock. Prior to this rule, the provision had not yet been updated to reflect the newer causation test compelled by the Supreme Court;
until the revision in this rule, the interpretive rule stated in part that if protected activity was merely a substantial reason for the adverse action, section 11c has been violated.
That interpretation is not in alignment with Gross, Nassar, and Bostock, and it is inconsistent with OSHAs policy documents stating on the basis of Nassar that but-for causation must be shown to prove a section 11c violation.
To bring the interpretive rule in line with Supreme Court precedent and OSHAs current interpretation, the agency is revising 1977.6b in three ways. First, and most importantly, this rule revises the second sentence of the provision by removing the substantial reason language. As explained above, that sentence previously provided two ways in which a causal connection between protected activity and adverse action could be established in mixed motive cases: 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. By removing the substantial reason option, OSHA is clarifying that to
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prevail in a section 11c case the Secretary must show that but for the protected activity the employee would not have suffered the adverse action.
Second, this rule deletes the citations to the two cases that appeared after the previous second sentence Mitchell v.
Goodyear Tire & Rubber Co., 278 F.2d 562, 565 8th Cir. 1960 and Goldberg v.
Bama Mfg. Corp., 302 F.2d 152 5th Cir.
1962 and the parenthetical accompanying the reference to Mitchell and replaces those cases with citations to Bostock Bostock v. Clay County, Georgia, U.S., 140 S Ct. 1731, 1739
2020 and Nassar Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338
2013. Deleting the references to the older cases should reduce the chance of any confusion about the appropriate causation standard. In addition, the updated citations should help employers and other stakeholders easily access information about the relevant causation standard should they wish to know more.
Third, this rule amends the first sentence of 1977.6b by adding the words or primary before the word consideration. Prior to this change, that sentence stated: At the same time, to establish a violation of section 11c, the employees engagement in protected activity need not be the sole consideration behind discharge or other adverse action. Adding or primary further emphasizes the Supreme Courts holdings and reflects the language in Bostock that the protected factor need not be the primary reason for the adverse action. See Bostock, 140 S Ct. at 1739.
In addition, OSHA is making one clarifying change to the last sentence of 29 CFR 1977.6b, which is unrelated to the issues regarding the but-for causation standard. The previous version of that sentence stated that the issue as to whether a discharge was because of protected activity will have to be determined on the basis of the facts in the particular case. This rule revises that sentence to add the words or other adverse action to reflect the full scope of section 11cs prohibition against retaliation.
OSHA notes that these changes do not affect the interpretation in 29 CFR
1977.6b that the employees engagement in protected activity need not be the sole consideration for the adverse action in order for a violation of section 11c to be established. That language is consistent with Bostock. See 140 S Ct. at 1739. Likewise, this revision does not affect any of the whistleblower provisions of other statutes enforced by OSHA that have special language on the
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