The U.S. Court of Appeals for the Eleventh Circuit has ruled that the strict "but for" legal standard applies retaliation claims under the Family and Medical and Leave Act (FMLA). The case is Lapham v. Walgreen Co., No. 21-10491 (11th Cir. 2023).
In Lapham, an employee took intermittent FMLA leave to care for her disabled son. After her employer terminated her, she sued and, in one of her claims, alleged that the employer had illegally retaliated against her for exercising her right to take leave under the FMLA. The employer claimed that it had terminated the employee for reasons unrelated to her FMLA leave, including a history of performance issues and dishonesty.
Eligible employees who work for employers subject to the FMLA can take up to 12 weeks of unpaid leave in various circumstances, including to care for a seriously ill or injured spouse or dependent. Employees may take FMLA leave intermittently or in periodic blocks of time for a single illness or injury. The length of an individual's intermittent leave can vary widely, lasting from one hour to several weeks at a time. Employers may not discriminate or retaliate against employees who exercise their right to take leave under the FMLA.
The federal district court hearing the case applied a "but for" legal standard of review to the employee's FMLA retaliation claim. More specifically, the court considered whether the employer's alleged reason for the employee's termination was a pretext for FMLA retaliation or whether the employer would have fired the employee had she not taken FMLA leave. The court ruled in favor of the employer, finding that no retaliation had occurred, and the employee appealed.
On appeal, the Eleventh Circuit adopted the district court's "but for" standard of review. The appellate court noted that had Congress intended to apply a "motivating factor" legal standard to FMLA retaliation claims, it would have included that provision in the law. However, since Congress did not include that provision, the court concluded that Congress intended the default "but for" standard to apply in reviewing these legal claims.
Therefore, the Eleventh Circuit found that the employee failed to produce sufficient evidence that the employer's alleged reasons for termination were pretextual. The court also found no evidence that, but for retaliation under the FMLA, the employer would not have fired the employee.
Although favorable to employers, the Eleventh Circuit's decision creates a split among the circuits on the proper legal standard of review in FMLA retaliation claims. The Second, Third, and Fifth Circuit Courts of Appeal have previously ruled that the "motivating factor" is the correct legal standard for FMLA retaliation claims. In other words, these courts have ruled that employees must only prove that FMLA retaliation was a "motivating factor" in the termination or other adverse employment decision. This growing split will likely lead to a future review of the issue by the U.S. Supreme Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.