In a landmark workplace decision issued three years ago, the U.S. Supreme Court ruled that a plaintiff alleging unlawful retaliation under Title VII of the Civil Rights Act of 1964 must prove that retaliation was the “but-for” cause of the challenged employment decision. Since that decision in University of Texas Southwestern Medical Center v. Nassar, the lower federal courts have wrestled with whether the but-for test should be applied to retaliation claims arising under other federal anti-discrimination laws.
The U.S. Court of Appeals for the Fifth Circuit recently became the first federal appeals court to directly apply Nassar’s but-for standard to a claim of retaliation brought under the Family and Medical Leave Act (FMLA). As is the case with Title VII, the FMLA contains a provision making it unlawful to discharge or otherwise discriminate against any individual for “opposing any practice made unlawful” by the statute.
The ruling by the Fifth Circuit in Wheat v. Florida Parish Juvenile Justice Commission, No. 14-30788 (5th Cir. Jan. 5, 2016), reversed the trial court’s dismissal of the case. Although the appeals court found that the plaintiff had to demonstrate that but for her FMLA activity, she would not have lost her job, it sent the case back to give her the chance to prove it.
A copy of the Fifth Circuit’s ruling in Wheat is available online here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.