Abstract
Statutory anti-retaliation protections are often the only enforcement mechanism placed in federal minimum labor standard statutes, and the Family Medical Leave Act (FMLA) is no exception. An integral part of proving retaliation claims is showing there was a causal connection between the adverse action and the use of protected leave. Unfortunately for plaintiffs, the federal circuit courts apply different causation burdens to these claims. Some adopt motivating factor causation and others adopt but-for causation.
This Essay examines this circuit split and argues for the adoption of motivating factor causation for FMLA retaliation claims stemming from the use of protected leave. Drawing on statutory interpretation, legislative history, and comparative analysis with analogous employment discrimination regimes, this Essay contends that a motivating factor standard better aligns with the FMLA's statutory text, remedial purpose, and protective design. This is true even in the absence of deference to Department of Labor (DOL) regulation on the subject. Further, requiring but-for causation imposes an unduly high burden on employees, undermining enforcement and enabling subtle forms of employer retaliation to evade liability. By contrast, a motivating-factor approach preserves employer defenses while ensuring meaningful protection for employees who invoke their statutory rights.
Volume
110
Issue
2
Page
152
Year
2026
Recommended Citation
Alyssa Shaw,
Standard Confusion: The Case for Adopting Motivating Factor Causation for FMLA Retaliation Claims,
110
Minn. L. Rev. Headnotes
152
(2026).
Available at:
https://scholarship.law.umn.edu/mlr-headnotes/vol110/iss2/2
Rights
http://rightsstatements.org/vocab/InC-EDU/1.0/
Publication Abbreviation
Minn. L. Rev. Headnotes
