2d Circuit Adopts “Negative Factor”, Rather Than “But For”, Causation Standard For FMLA Retaliation Claims

In Woods v. START Treatment & Recovery Centers, Inc., No. 16-1318-CV, 2017 WL 3044628 (2d Cir. July 19, 2017), the Second Circuit clarified the causation standard for retaliation claims brought under the Family & Medical Leave Act of 1993 (FMLA).

One FMLA regulation, 29 C.F.R. 825.220(c), provides:

The Act’s prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, pro-motions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies. (Emphasis added.)

The court, applying the factors arising from Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984), held that it could properly defer to this provision (which was promulgated by the Department of Labor).

In light of this determination, the Court held that the district court erred by providing a jury instruction that “but for” causation applies to FMLA retaliation claims.