The Supreme Court’s ruling in Bostock v. Clayton County, 2020 U.S. LEXIS 3252 (June 15, 2020) gave a huge win to the transgender community nationwide, but it has many scholars questioning recent interpretations of the Federal Railroad Safety Act (FRSA).
The FRSA states that an employee must show the employer’s “discrimination is due, in whole or in part, to the employee’s” protected activity. This language was widely interpreted throughout the federal circuits as the inextricably intertwined standard: if the adverse action cannot be explained without discussing the protected activity there exists a presumptive inference of causation, until Thorstenson v. BNSF Railway Co, 2019 DOL Ad. Rev. Bd. LEXIS 100, *10-12, (ARB Nov. 25, 2019), wherein the courts adopted the much stricter proximate cause standard, that the employee must show the protected activity constituted the proximate cause of the employer’s decision to implement the adverse action.
In Bostock, the Supreme Court was tasked with interpreting the language of Title VII, which is very similar to the wording of the FRSA, stating it is “unlawful…for an employer…to discriminate against any individual…because of” the individual’s statutorily protected characteristic. The court interpreted this language to mean that “[s]o long as the plaintiff’s [protected characteristic] was one but-for cause of [the employer’s] decision, that is enough to trigger the law.” Bostock, pg. 15*. This broader interpretation of such parallel wording leads to the conclusion that the Thorstenson decision interpreted the words of the FRSA in an improperly narrow way. If an FRSA case is granted certiorari, you may expect this Supreme Court to bring back the inextricably intertwined standard.
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