Written by Susan F. Wiltsie and Theanna Bezney from Hunton Andrews Kurth LLP on January 31, 2025
The Family and Medical Leave Act (FMLA) prohibits employers from retaliating against employees who exercise rights under the Act. 29 U.S.C. 2615(a)(2). Since 2009, 3,211 FMLA retaliation lawsuits have been filed against retail employers. Only employers in the health care industry had more cases filed against them.
These cases are very difficult to defend. Retail managers are financially motivated to keep staffing levels calibrated to demand. Consider this routine example of an employee with a certification for intermittent FMLA leave. Employee calls off at the last minute for an FMLA-covered reason. Management may not legally require the employee to find his/her own replacement. The Department of Labor (DOL) considers that to be a violation of FMLA. Management must either find a replacement or everyone working that day must do additional work, including the manager on duty. This often creates irritation and resentment–just the types of facts that help a plaintiff prevail on a claim that any subsequent adverse employment action was motivated at least in part by FMLA retaliation.
Retail employers have strong reason to believe that defending these cases is getting easier.
Historically, federal circuit courts have applied the “motivating standard” analysis to claims of FMLA retaliation. Under this standard, a plaintiff only is required to show their exercise of FMLA rights was one factor in the employer’s decision to take an adverse action against them. The plaintiff need not prove it was the only factor or even that it was the biggest factor in the employer’s decision. If the plaintiff shows the employer at least considered their FMLA-protected activity in some way, the retaliation claim would survive dispositive motion practice. This is the current DOL position.
In Lapham v. Walgreen Co., 88 F.4th 879 (11th Cir. 2023), the Eleventh Circuit held that plaintiffs seeking to pursue FMLA retaliation claims must prove causation according to the “but-for” standard. The but-for standard is satisfied only if the plaintiff can prove the adverse employment action would not have happened but for the protected activity–a much more difficult standard for the plaintiff.
The Lapham court relied upon the US Supreme Court’s ruling in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), which involved claims of retaliation under Title VII of the Civil Rights Act of 1964 (Title VII). 42 U.S.C. 2000e. In Nassar, the Court noted Title VII’s retaliation provision provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he [engaged in a specified protected activity].” The Court also noted the “because” language in Title VII’s retaliation provision stood in contrast to its discrimination provision, which expressly establishes a motivating-factor causation standard. This difference persuaded the Court that the proper standard for retaliation claims under Title VII is but-for causation.
The Lapham court concluded that, although the FMLA’s retaliation provision does not include any express “because of” language like that of Title VII, “but for” causation should apply because the FMLA language is “sufficiently similar” to Title VII’s retaliation provision. The Second Circuit is the only other court of appeals to expressly apply this standard. See, e.g., Carter v. TD Bank, N.A., No. 23-950, 2024 WL 2828470, at *4 (2d Cir. June 4, 2024) (“Like Title VII discrimination claims–and unlike ADA discrimination and Title VII retaliation claims–FMLA retaliation claims are subject to the more lenient `motivating factor’ causation standard”) (citing Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017)).
Shortly after the Lapham case, the Supreme Court issued its landmark opinion in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 219 L. Ed. 2d 832 (2024), ending Chevron deference. Under Chevron, courts deferred to the expertise and opinions of agencies in interpreting ambiguous language in the laws that the agency is tasked with enforcing. Following Loper Bright, however, federal courts now have the power to decide what ambiguous statutory language means for themselves.
Since Lapham and Loper Bright, both the Third and Fifth Circuit courts have questioned–but not decided–what the appropriate evidentiary standard should be for FMLA retaliation. See, e.g., Coleman, 2024 WL 4490602, at *3 n. 4 (3d Cir. Oct. 15, 2024) (noting whether the application of the “motivating factor” standard in FMLA retaliation claims withstands the Loper Bright holding “is open to question”); accord Decou-Snowton v. Jefferson Par., No. 24-30079, 2024 WL 4879466, at *4 (5th Cir. Nov. 25, 2024) (“In this circuit, the causation standard in FMLA retaliation cases is an unsettled question”). The Sixth Circuit has not yet ruled on this issue, but has stated the “but-for” standard “is likely” to apply to the causation analysis for FMLA retaliation claims. Sharp v. Profitt, 674 Fed. Appx. 440, 451 (6th Cir. 2016).
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. In the meantime, multidistrict retail employers should consider whether there is an opportunity to transfer FMLA retaliation cases to courts applying the more demanding “butfor” causation, or, regardless of where the case is pending, take a more aggressive defensive stance given better odds of success.
