For What? Resolving the Causation Split for FMLA Retaliation Claims

Authors

Lucy Wess

Abstract

For over thirty years, the Family and Medical Leave Act (FMLA) has provided working Americans the opportunity to maintain their professional careers while juggling personal and familial health care needs. Like many other employment law statutes, the FMLA prohibits retaliation by employers against employees who exercise their rights under the statute. However, a circuit split as to the correct causation standard for FMLA retaliation claims leaves plaintiffs and defendant employers uncertain of case outcomes as well as the legality of the employer’s conduct. The Fourth and Eleventh Circuits held that the but-for causation standard is the proper standard in such retaliation cases. However, the Second and Third Circuits held that the proper standard of causation is the motivating factor standard. This Comment will examine the causation standards applied to retaliation claims arising under different employment law statutes including Title VII of the Civil Rights Act and the Age Discrimination in Employment Act. This Comment will also assess the plain language of the FMLA as well as the potential for deference to the Department of Labor, which strongly endorses the motivating factor standard. This analysis will lead to the conclusion that in spite of the but-for causation standard’s application to other employment law issues, the motivating factor standard should be enforced through amendment to the FMLA in order to better protect plaintiff-employees.

Recommended Citation

Lucy Wess, For What? Resolving the Causation Split for FMLA Retaliation Claims, 75 Cath. U. L. Rev. 373 (2025).
Available at: https://scholarship.law.edu/lawreview/vol75/iss2/10