FMLA retaliation requires ‘but for’ proof

Employees who claim they were fired for taking FMLA leave must show that taking leave was the sole reason they were fired—what’s known as the “but-for” cause. Until now, it was unclear if workers could take advantage of a lighter burden of proof that only required them to prove taking leave was merely a “motivating factor” in the discharge decision. In other words, it’s now required that workers show their employers would not have fired them if they didn’t take leave.

As a practical matter, employers should make sure that, at least internally, they document every reason for firing someone. That way, should they be sued for FMLA retaliation, they can point to multiple discharge reasons. That will make it harder for the worker to single out taking FMLA leave as the reason for the former employer’s decision.

Recent case: Cassandra worked for a substance abuse treatment center. She made a request for FMLA leave that was rejected. Shortly after, she made a second request. This one was approved.

After she returned to work, she was discharged. Cassandra sued, alleging retaliation.

The employer asked the court to rule on what Cassandra has to prove. Cassandra wanted to prove that retaliation for her FMLA request and use was merely a motivating factor in the decision. The employer wanted her to have to prove that it was the only reason for her discharge. That’s harder.


The court, ruling for the first time on the exact question in New York, concluded she had to meet the harder burden. The case now goes to trial and the jury will be asked if Cassandra’s evidence shows that she wouldn’t have been fired if she hadn’t requested or used FMLA leave. (Woods v. Start Treatment, No. 13-CIV-4719, ED NY, 2016)