Labor & Employment Law Daily ‘Motivating factor’ standard not applicable to discharge in violation of EPPA
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Wednesday, July 15, 2020

‘Motivating factor’ standard not applicable to discharge in violation of EPPA

By Ronald Miller, J.D.

There was nothing in the statute to suggest that the “motivating factor” standard or any standard other than the “but for” standard applies.

Finding that the “on the basis of” language in the Employee Polygraph Protection Act (EPPA) supported an employer’s argument that a “but for” causation standard applied to cases under the EPPA, a federal district court in Missouri denied an employee’s motion for summary judgment as to liability for a violation of the Act. Concluding that it was bound to follow the Supreme Court’s decision in Comcast Corp. v. National Association of African American Owned-Media, the court determined that an employer’s admission the polygraph played a small part in his decision to discharge an employee did not prove that the “but for” standard was met (Kautz v. Springfield Pool & Spa, LLC, July 9, 2020, Ketchmark, R.).

Polygraph after theft. The employee worked for the employer, a pool and hot tub supply retailer. On December 7, 2018, petty cash in the amount of $603.17 went missing from the employer’s property. The employer asked several of its employees to take a polygraph. The employee took and failed the polygraph and was fired three days later.

According to the employer, after investigating and speaking with employees and looking at the employee’s past work history, the polygraph played a small part in his final determination, and he thought the employee had stolen the money. She had prior thefts, and coworkers had seen her making suspicious runs to her car on the same day. Those facts, combined with coworkers pointing the finger at her pushed the employer into deciding that it was time to cut ties with the employee.

The employee filed this suit in state court alleging violations of the EPPA. After the employer removed the case to federal court, the parties filed cross-motions for summary judgment.

According to the employee, the employer was liable under the EPPA since there was an admission that the polygraph played a role in her termination. Specifically, she pointed out that during his deposition, the employer stated that the results of the polygraph played “a very small role” in his decision to terminate her. She also suggested she need only prove that the results of the polygraph were a “motivating factor” for her termination—the causation standard in certain Title VII discrimination cases.

“But for” causation standard. For its part, citing the Supreme Court’s decision in Gross v. FBL Financial Services, Inc, the employer argued that the “but for” causation standard applied. In Gross, the Court held that for an age discrimination claim, the plaintiff must prove “by a preponderance of the evidence, that age was the ‘but for’ cause of the challenged adverse employment action.” The EPPA, 29 U.S.C. § 2002, provides that, “Except as provided in sections 2006 and 2007 of this title, it shall be unlawful for any employer engaged in or affecting commerce… to discharge… any employee or prospective employee on the basis of the results of any lie detector test.”

Here, the court determined that “on the basis of” language of the statute supported the employer’s argument that a “but for” causation standard applied to cases under the EPPA. The employer argued that the “but for” and “because of” language were analogous to “on the basis of.” Further, the Supreme Court decided in Comcast Corp. v. National Association of African American Owned-Media, that the causation standard for any tort is the “but for standard, unless Congress has specifically included language in the governing statute to require otherwise.”

Accordingly, the court determined that there was nothing in the statute to suggest the “motivating factor” standard or any other standard other than the “but for” standard applied. The employer testified that the employee’s prior thefts, employee interviews, and her dispensability played a role in his decision to terminate her. Given that the court was bound to follow Comcast, the employer’s admission that the polygraph played a small role in the decision to terminate the employee did not prove that the “but for” standard was met.

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