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New Look at the Test for Discrimination Under the Mine Act

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

For many years, the Federal Mine Safety and Health Review Commission (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 or her 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 text” in Section 105(c), which indicates courts are to use a “but-for causation standard,” 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. It is also not certain 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 Under the Mine Act

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 or she 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, multipart 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 or she 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 opinions from the Supreme Court of the United States, 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 standard.”

In the context of the Mine Act under a “but-for causation standard,” 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 or she 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 the U.S. 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.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 172

About this Author

William Doran, Ogletree Deakins Law Firm, Washington DC, Labor and Employment Litigation Attorney

Bill Doran’s practice is concentrated in safety and health law and litigation.

Bill represents and advises companies with respect to issues arising under Federal and State Safety and Health Statutes. He represents companies in accident investigations, special investigations, audits and discrimination investigations conducted by OSHA, MSHA, and state agencies. He also represents companies in litigation before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission and the federal courts.

Margaret S. Lopez, Ogletree Deakins, mining companies lawyer, gravel industries attorney
Office Managing Shareholder

Margo Lopez is the Managing Shareholder of the Washington, D.C. office and a long time workplace safety lawyer representing mining companies in the coal, metal, stone, sand and gravel industries. She is a highly successful litigator and regularly presents company and industry cases before Administrative Law Judges, Federal Review Commissions and the United States Court of Appeals. In a recent high profile Court of Appeals case, Margo effectively saved the mining industry from severe limitations on its rights to manage its workforce, involving potentially millions of...