The U.S. Court of Appeals for the Second Circuit recently determined that for an employee to be able to advance a viable retaliation claim under the Family and Medical Leave Act (FMLA), he or she only needs to demonstrate that exercising his or her rights under the act (such as taking protected leave) was viewed as a negative factor by the employer and thusly connected to an adverse employment action.
The Second Circuit calls this a “motivating factor” or “mixed motive standard,” which is a lower burden of proof than the “but for” standard that was usually applied to retaliation claims. This lower burden of proof could well result in more FMLA retaliation claims avoiding summary judgment in Connecticut, New York and Vermont, where the Second Circuit has jurisdiction.
The previous “but for” standard arose out of Woods v. Start Treatment & Recovery Centers, Inc., in which the plaintiff was a substance abuse counselor at a nonprofit drug treatment facility. She had a well-documented record of poor performance, but also of taking FMLA leave for anemia treatment.
After she was terminated for poor performance, she filed a lawsuit stating it was retaliation or her taking FMLA leave. Her employer argued the plaintiff had to show the exercise of her FMLA rights was the “but for” cause of her discharge, in that she would not have been fired “but for” taking FMLA leave. The employer ultimately won the case.
In this appeal, the Second Circuit agreed instead with the employee, finding she needed only to show taking FMLA leave was a “motivating factor” in her discharge. The court said the statutory language of the FMLA did not contain a causation standard, which meant courts should defer to the Department of Labor’s interpretation, which provides that FMLA leave cannot be used as a “negative factor” in deciding whether to fire an employee.
For more information on the affect this case could have and what your next steps should be if you were the victim of employer retaliation, meet with an experienced Dallas attorney at Whistleblower Law for Managers.