Employers that fire employees for taking protected medical leave under the Family Medical Leave Act (FMLA) can be held liable for retaliation claims. But what about when there are other legitimate reasons for the employee’s termination? The 2nd Circuit Appeals Court will hear oral arguments on Thursday in the case of Woods v. START Treatment and Recovery Centers, Inc. on whether to allow FMLA retaliation claims when the alleged retaliation is motivated only in part because of the employee’s FMLA leave.
Woods’ allegations go as follows. START hired her in 2007 and she put in a request for medical leave for her anemia in 2011. Woods subsequently withdrew her request because her supervisor had warned her she was needed at work. She later fell ill and was hospitalized. In 2012, Woods was put on probation and was disallowed from taking medical leave during her probation. Soon after her probation began, Woods claims she collapsed on a subway train. She was hospitalized for six days, and weeks after returning to work, she was fired. START cited performance issues as the reason for Woods’ termination. Woods, obviously, alleges that her discharge was in violation of her FMLA rights.
The facts lend credence to both positions, making this a “mixed motive” case, meaning that the employer may have had both lawful and unlawful reasons for discharging the employee. The district court in this case ruled that Woods must show a ‘but-for’ causation between the alleged retaliatory action and plaintiff’s FMLA protected leave. The 6th, 7th, and 11th Circuit Court of Appeals have held that FMLA claims are permissive where there is a ‘mixed-motive’, but these decisions were all issued before the U.S. Supreme Court’s decision in University of Texas Southwest Medical Center v. Nassar.
Nassar dealt with a Title VII claim under the Civil Rights Act of 1964 The court ruled that it does not permit ‘mixed-motive’ retaliation claims under Title VII. The Supreme Court reiterated this position in Gross v. FBL Financial Services Inc, when reviewing claims under the Age Discrimination in Employment Act (ADEA).
Title VII and ADEA retaliation claims are often times decided in a similar manner because the prohibitory language in each is similar. But where Title VII and the ADEA prohibit discrimination “because of” protected characteristics, the FMLA’s language is more broad. Under the FMLA, it is unlawful “to interfere with, restrain, or deny the exercise of” medical leave rights. While Title VII and ADEA require the discrimination to be the reason for the adverse action, the FMLA language is less clear. Obviously, it is far easier to prove that a prohibited reason is one of the reasons for an adverse action against an employee, instead of having to show that if it weren’t for the prohibited reason that the adverse action to the employee would not have occurred.
No matter how the court decides in Woods, this issue is bound to be headed to the Supreme Court.
