The Family and Medical Leave Act prohibits employers from retaliating against employees who exercise FMLA rights. Last year, the Department of Labor investigated 349 FMLA violation cases, and several hundred FMLA cases were brought directly in court.

Multi-district employers should consider whether there is an opportunity to transfer FMLA retaliation cases to courts applying the “but-for” causation or, regardless of where a case is pending, whether to take a more aggressive defensive stance.

Employers in general should ensure that all reasons are well documented for terminating an employee. This could make more likely a finding that, even if an employee’s FMLA leave was considered in connection with the termination decision, the employer would have still proceeded based on the other demonstrated issues.

Historically, US circuit courts have applied the motivating standard analysis to claims of FMLA retaliation. Under this standard, a plaintiff must show that their exercise of FMLA rights was a factor in the employer’s decision to take an adverse action. The plaintiff doesn’t need to prove it was the only—or even the biggest—factor, just that the employer considered their FMLA-protected activity in some way.

In Lapham v. Walgreen Co., the US Court of Appeals for the Eleventh Circuit held that plaintiffs seeking to pursue FMLA retaliation claims must prove causation according to the but-for standard. This standard is satisfied only if plaintiffs can prove the adverse employment action wouldn’t have happened but for the protected activity—a much more difficult standard for the plaintiff.

The panel relied on the US Supreme Court ruling in University of Texas Southwestern Medical Center v. Nassar, which involved claims under Title VII’s retaliation provision. It concluded that but-for causation should apply because the FMLA’s language is “sufficiently similar” to Title VII’s retaliation provision, even though the FMLA’s retaliation provision has no express “because of” language itself.

The Second Circuit is the only other appeals court to expressly apply this standard. In Carter v. TD Bank, it held that like Title VII retaliation claims, but unlike ADA discrimination and Title VII retaliation claims, “FMLA retaliation claims are subject to the more lenient ‘motivating factor’ causation standard.”

Shortly after the Laphan decision, the U.S. Supreme Court issued its landmark opinion in Loper Bright Enterprises v. Raimondo, ending Chevron deference. Under Chevron, courts deferred to the expertise and opinions of agencies in interpreting ambiguous language in the laws which the agency is tasked with enforcing. Following Loper Bright, however, federal courts no longer must defer to agency interpretation of ambiguous statutory language.

Since Laphan and Loper-Bright, both the Third Circuit and Fifth Circuit courts have questioned—but not decided—the appropriate evidentiary standard for FMLA retaliation claims. In the Coleman v. Children’s Hosp. of Phila. decision, the Third Circuit said that claiming the motivating factor standard in FMLA retaliation claims withstands the Loper Bright holding “is open to question.”

In Decou-Snowton v. Jefferson Par, the Fifth Circuit noted that “the causation standard in FMLA retaliation cases is an unsettled question.” The Sixth Circuit hasn’t yet ruled on this issue, but stated in Sharp v. Profitt that the but-for standard “is likely” to apply to causation analyses for FMLA retaliation claims.

The divergent federal circuit court opinions make this issue ripe for Supreme Court consideration, and Loper Bright gives reason for optimism regarding the ultimate outcome.

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