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New look at the test for discrimination

By and |  June 8, 2021
Headshots: Bill Doran and Margo Lopez

Bill Doran and Margo Lopez

The Ninth Circuit Court of Appeals took a fresh look at the test for discrimination under Section 105(c) of the Federal Mine Safety & Health Act of 1977 (Mine Act), issuing a decision that could signal a major shift in the way Mine Safety & Health Administration (MSHA) discrimination cases are litigated.

For many years, the Federal Mine Safety & Health Review Commission and federal appellate courts applied a legal test for discrimination that essentially could result in a finding of discrimination if the miner proves the adverse action the operator took against him was motivated in any part by protected safety activity with opportunities for the operator to rebut and also rely upon an affirmative defense to counter the miner’s claim. The Ninth Circuit now says that test is inconsistent with the unambiguous language in Section 105(c), which indicates courts are to use a “but for” causation test, as is used in other similarly worded employment discrimination statutes.

It remains to be seen whether the commission will apply this new test to all cases nationwide or just cases arising in states and territories within the Ninth Circuit. We also cannot be sure what direction other federal courts may take in future cases on this same question, so this will be an issue to watch.

Test for discrimination

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Section 105(c) of the Mine Act prohibits mine operators from taking any discriminatory action against a miner based on the miner’s protected safety activity. Photo: iStock.com/rusm

Section 105(c) of the Mine Act prohibits mine operators from taking any discriminatory action against a miner based on the miner’s protected safety activity. Operators found to be in violation may be ordered, among other things, to pay a civil penalty to the government, compensate the miner for lost wages or other damages, and reinstate the miner to his job if he was discharged.

All discrimination cases are heard by a commission administrative law judge (ALJ), and ALJ decisions may be appealed to the commission and next to the applicable federal court of appeals or the United States Circuit Court for the District of Columbia. The secretary of labor (MSHA) may decide to prosecute a miner’s case on the miner’s behalf, or the miner may file the case on his own if the secretary of labor does not.

The commission and courts have long applied a mixed-motive, multi-part test for determining whether discrimination occurred, shifting the burden of proof between the miner and operator. The test has come to be called the Pasula-Robinette test after the two leading cases that established it.

Under the Pasula-Robinette test, a miner first must establish a prima facie case of discrimination by proving he engaged in protected activity and that the adverse action at issue was motivated, in any part, by that activity. The burden then shifts to the operator to rebut by showing either that no protected activity occurred or the operator was in no part motivated by protected activity. The operator also may defend affirmatively by proving it would have taken the adverse action based on unprotected activity alone.

In rejecting the Pasula-Robinette test, the Ninth Circuit relied upon several U.S. Supreme Court opinions, holding that where a statute defines discrimination as an adverse action taken against someone “because of” some protected characteristic of that individual, then the correct test to apply to the facts in the case is a “but for” causation test.

In the context of the Mine Act under a “but for” causation test, the miner must show that the operator would not have taken the adverse action against him “but for” the miner’s protected activity. In other words, the miner must prove he engaged in protected activity and that the mine operator would not have disciplined him were it not for that protected activity. It need not be the primary or only motivating factor, according to this court decision.

In issuing its ruling, the Ninth Circuit noted that the commission upheld the Pasula-Robinette test in 2016, stating that it was consistent with the intent of Congress that Section 105(c) protections be broadly interpreted. The Ninth Circuit was not persuaded by this rationale, however, noting that the Supreme Court did not look to legislative history in interpreting the unambiguous “because of” text in other anti-discrimination statutes.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.


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