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Update on Retaliation Claims
The first part of this article described Kasten v. Saint-Gobain Performance Plastics Corp., 2009 U.S. App. LEXIS 13913 (7th Cir. June 29, 2009). In that decision, the Seventh Circuit held that an employee's strictly oral complaints about allegedly improper wage practices did not implicate the FLSA's prohibition of retaliation against those who have “filed any complaint.” 29 U.S.C. ' 215(a)(3) (emphasis added). The conclusion discusses whether the decision is consistent with Supreme Court case law, the practical implications of the decision, and whether it applies to other federal anti-discrimination statutes.
Is the Kasten Decision Consistent with Supreme Court Case Law?
The Kasten decision, with its primary focus and reliance on the meaning of the “filed any complaint” language of ' 215(a)(3), is consistent with recent Supreme Court decisions that have interpreted federal statutes, including but not limited to anti-discrimination statutes, by emphasizing, first, the plain meaning of the provision at issue. For example, in Gross v. FBL Financial Services, Inc., No. 08-441, __ U.S. __, (U.S. Supreme Court June 18, 2009), the high court rejected an argument that the ADEA permits use of a “mixed-motive” analysis, like that which was explicitly provided for in Title VII pursuant to the Civil Rights Act of 1991. The Gross court analyzed the textual differences between ADEA and Title VII claims with regard to burdens of persuasion, and specifically whether the allegedly illegal motive must be a “but-for” cause or may be simply one of several “motivating factors.” After reviewing the statutory text, the court held that the differences between the ADEA and Title VII statutory provisions prevent application of the “mixed-motive” analysis in ADEA cases.
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