The Rhode Island General Assembly is considering amending the state’s Fair Employment Practices Act (FEPA) to make it easier for employees to sue their employers for discrimination-based retaliation. Under FEPA, employees can sue their employers if they believe they were retaliated against for complaining of discrimination or for participating in the investigation of alleged discrimination. Retaliation can take a variety of forms, including termination, denial of a promotion, and a reduction in responsibilities or pay—referred to generally as an adverse employment action. FEPA is analogous to Title VII of the federal Civil Rights Act of 1964, which also prohibits retaliation. Because FEPA is patterned after this federal counterpart, courts have largely followed federal law when applying the state law. Until recently, it was not clear whether, under federal law, it was sufficient for an employee claiming retaliation to only prove that the retaliation was one motivating factor of potentially many for the adverse action (i.e., the “motivating factor test”) or whether the employee needed to prove that but for the retaliatory motive, the adverse action would not have occurred (i.e., the “but-for test”). Last June, the Supreme Court of the United States in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) decided that under Title VII a plaintiff must prove “but-for” causation to prevail on a claim for retaliation. Thus, for example, under Nassar an employee subject to layoff who may have previously filed a charge of discrimination against his or her employer cannot successfully allege that he or she was selected for layoff because of his or her protected activity if the employer can show that regardless of the charge or investigation, the employee would have been laid off because of legitimate business circumstances.
In response to the Nassar decision, the Rhode Island Commission for Human Rights has proposed legislation that would codify into FEPA the “motivating factor test” to prevent courts that are interpreting FEPA from following the stricter causation standard imposed by the Supreme Court. If the proposed amendment passes, it would mean that the employee who was laid off in the above example would be able to bring a successful claim for retaliation under FEPA if he or she could produce evidence that his or her prior charge or participation in an investigation was a consideration in the minds of the layoff decision makers. Under this standard, stray remarks by subordinates, for example, could lead to liability for retaliation even if the ultimate “but-for” factor underlying the decision is a legitimate business reason.
Those interested in speaking out about the proposed bill, 2014—H 7450, should consider sending a representative to testify at the public hearing (which is scheduled for Wednesday, April 30, 2014, at approximately 4:00 p.m. at the State House in Providence in Room 205) or contacting the office of the state representative who is assigned to their business location to voice their concerns. Information on contacting local officials can be found on the Rhode Island Secretary of State’s voter information center.