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Eleventh Circuit Adopts Strict Standard for FMLA Claims

by | Dec 28, 2023 |

The Eleventh Circuit Court of Appeals, in Lapham v. Walgreen Co., has ruled that the “but for” legal standard applies to Family and Medical Leave Act (“FMLA”) retaliation claims.

Law. The FMLA entitles eligible employees to take up to 12 weeks’ unpaid leave: (i) for one’s own serious health condition; (ii) to care for a seriously ill or injured spouse or dependent; (iii) for the birth, adoption or placement of a child; or (iv) to deal with “exigencies” related to their spouse’s military deployment. It also provides employees with up to 26 weeks’ unpaid leave to care for a spouse who has a military service-related illness or injury.

Intermittent leave may be taken periodically and may consist of separate blocks of leave for a single illness or injury. Intermittent leave can vary in time from an hour or more to blocks lasting several weeks.

Employers are prohibited from discriminating or retaliating against employees who exercise their FMLA rights.

Facts. An employee took intermittent leave from work to care for her disabled son. After she was terminated by the employer, she sued, claiming, among other things, that the termination was illegal retaliation for the exercise of her FMLA rights. The employer responded that the employee had been terminated for other unrelated reasons, including failure to complete assigned tasks, insubordination and dishonesty.

The district court assigned to the case determined that it should apply a “but for” standard of review for the employee’s FMLA claim. In other words, it reviewed whether the employee produced evidence that the employer’s offered reason for her termination was “merely a pretext to mask its real reason (i.e., FMLA retaliation), and that but for the latter, [the employer] would not have fired her.” It then ruled in favor of the employer, and the employee appealed the adverse determination to the Eleventh Circuit.

Appeals Court. The Eleventh Circuit agreed with the district court that the “but for” test was the appropriate standard of review. Citing prior cases, it noted that if Congress had desired to make the “motivating-factor” standard applicable to FMLA retaliation claims, it would include a motivating-factor provision in the law. However, in writing the FMLA’s retaliation provision, “Congress clearly chose to embrace the default but-for causation standard.”

The Eleventh circuit noted that the but-for test “directs [the court] to change one thing at a time and see if the outcome changes. If it does, the isolated factor is a but for cause. And if it does not, the isolated factor is not a but for cause[.]”

The Eleventh Circuit concluded that the employee had failed to produce sufficient evidence showing that the employer’s reasons for her termination were merely pretext for retaliation, or that but for the FMLA retaliation the employer would not have fired her. Therefore, it dismissed the employee’s appeal.

Employer Takeaway. Although this decision favors employers, other federal appellate courts (i.e., the Second, Third and Fifth Circuits) have ruled that the employee need only establish that FMLA retaliation was a “motivating factor” in the adverse employment decision. Due to the significance of this issue and the disagreement among lower courts, it is likely that the U.S. Supreme Court will eventually address the matter and make a decision on which standard is correct.