Among other things, the federal Family and Medical Leave Act (FMLA) prohibits an employer from retaliating against employees who exercise their rights under the law.
In two recent cases of first impression before the Second and Third Circuit Courts of Appeals respectively, the appeals courts reversed lower court rulings and held that a plaintiff claiming retaliation under the FMLA can prevail on a so-called “mixed-motive” theory. More specifically, the courts found that a plaintiff does not have to show that the employer’s motive was the “but-for” cause of the adverse employment action, but can win even if the employer’s actions were motivated by both retaliatory (i.e., unlawful) and non-retaliatory (lawful) factors. The rulings put the Second and Third Circuits at odds with the Fifth Circuit, which in a 2016 case ruled the but-for test applies.
From a practical perspective, the Second and Third Circuits have made it easier for an FMLA plaintiff to prove an unlawful retaliation claim. Moreover, even if the employer produces evidence showing that there were legitimate reasons for the adverse action, under the mixed-motive theory, as long as a prevailing plaintiff can show that the employer’s actions were motivated in part by retaliatory factors, he or she will still be entitled to all of the remedies available under the FMLA, including reinstatement, back pay, and attorney’s fees.
Members of the Center for Workplace Compliance (CWC) can read more here.