Eleventh Circuit Holds that “But-For” Standard Applies to FMLA Retaliation Claims

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And in so holding, the U.S. Court of Appeals for the Eleventh Circuit deepens the circuit split, with several sister circuits holding that a “motivating factor” standard should apply.

Employers are prohibited from retaliating against employees for exercising their rights under the federal Family and Medical Leave Act, which provides up to 12 weeks of unpaid leave to employees for certain health- or military-related reasons for the employee or their family member. But the standard under which such claims are analyzed is unclear, with some circuits holding that the employee must show that the allegedly retaliatory employment action would not have been taken “but for” the FMLA-protected activity. Other circuits apply a less strict “motivating factor” analysis, under which the employee need only show that their FMLA activity played some role in the negative employment decision. The U.S. Department of Labor’s FMLA regulations also suggest a motivating factor standard.

In Lapham v. Walgreen Co., the employee claimed that she was terminated due to her requests for FMLA leave to care for her disabled son. The Eleventh Circuit, examined the language of the FMLA and compared it to similar language under Title VII, to which the Supreme Court applied a but-for analysis. The Eleventh Circuit also rejected the DOL’s contrary analysis, noting that it failed under the Chevron framework applicable to an agency’s regulatory interpretation of a law; if “Congress has spoken directly to the precise question at issue” in the statutory language, then Congress’ intent must apply. If the statutory language is ambiguous, then a court will defer to an agency’s interpretation of the language as long as that interpretations is “rational and consistent with the statute.” In this case, the Eleventh Circuit found that the statutory language clearly supported a but-for analysis, rendering the DOL’s interpretation meaningless.

For employers, this means that those located in the Eleventh, Fourth, and likely the Sixth Circuits will enjoy the harder-to-establish but-for standard for FMLA retaliation claim, while those in the Second and Third Circuits are subject to the motivating factor analysis, with the remaining Circuits unclear. This uncertainty may possibly be resolved by the Supreme Court at some point in the future.