The legal landscape for Family and Medical Leave Act (FMLA) retaliation claims has encountered a significant shift, particularly regarding the standard required to prove employer retaliation. Traditionally, U.S. circuit courts applied a “motivating factor” analysis. This required plaintiffs to show that their exercise of FMLA rights was a factor in the employer’s decision to engage in adverse action, without needing to prove it was the sole or primary factor.
However, a recent ruling by the US Court of Appeals for the Eleventh Circuit in Lapham v. Walgreen Co. has raised the bar by introducing a “but-for” causation standard. Under this standard, plaintiffs must demonstrate that the adverse action would not have occurred but for the protected activity, a more stringent requirement.
This shift was influenced by a Supreme Court decision on a parallel issue under Title VII’s retaliation provision in University of Texas Southwestern Medical Center v. Nassar. In contrast to this turn, the Second Circuit upheld the “motivating factor” standard in Carter v. TD Bank, reflecting the divided approach among circuits.
The aftermath of the Loper Bright Enterprises v. Raimondo decision further complicates the scenario, as it terminates Chevron deference, thereby reducing the judicial reliance on agency interpretation of ambiguous statutory language. This post-Loper Bright era encourages courts to independently scrutinize language interpretations, further muddying these matters.
Recent cases in the Third and Fifth Circuits reflect the uncertainty surrounding the applicable evidentiary standards for FMLA retaliation claims. For instance, the Third Circuit, in its Coleman v. Children’s Hosp. of Phila. decision, suggested that reliance on the motivating factor could be unsettled under Loper Bright.
With the Sixth Circuit yet to make a definitive ruling, and given the divergent opinions among circuits, the issue is poised for potential Supreme Court review, potentially redefining the future handling of FMLA retaliation claims. Employers should remain vigilant and consider refining their documentation and defensive strategies in light of these evolving legal standards.