"Motivating Factor" v. "But For" Causation and FMLA Lawsuits

In the context of employment law, particularly when dealing with Family and Medical Leave Act (FMLA) lawsuits, understanding the differences between "motivating factor" and "but for" causation is essential. Both standards are used to determine whether an employer's action (e.g., termination, demotion, or other adverse employment actions) was unlawful. Here’s an explanation of these two causation standards and how they apply to FMLA lawsuits:

Motivating Factor Causation

• Definition: Under this standard, the employee must show that the protected activity (e.g., taking FMLA leave) was a motivating factor in the employer's adverse action. This does not mean it was the sole factor, but it must be one of the factors that influenced the employer’s decision.
• Application in FMLA: This standard can be applied in cases where the employee claims that their FMLA leave was one of the reasons for their employer’s adverse action. Even if other legitimate reasons were also present, as long as the FMLA leave was a motivating factor, the employer could be found liable.

But For Causation

• Definition: Under this standard, the employee must show that the adverse action would not have occurred "but for" the protected activity (e.g., taking FMLA leave). This means that the protected activity was the decisive reason for the employer’s action.
• Application in FMLA: This standard is stricter and requires the employee to prove that their FMLA leave was the determining factor in the employer’s adverse action. If the employer can demonstrate that the adverse action would have occurred regardless of the FMLA leave, they may avoid liability.

Application in FMLA Lawsuits

• FMLA Interference Claims: Under the FMLA, an employee can file a claim for interference if they believe their employer unlawfully interfered with their rights under the Act. Courts typically apply the "motivating factor" standard in these cases. The employee needs to show that their FMLA leave was a motivating factor in the adverse action taken by the employer.
• FMLA Retaliation Claims: For retaliation claims under the FMLA, courts often apply the "but for" causation standard. This requires the employee to prove that the adverse action would not have happened but for their taking of FMLA leave.

Case Law Examples

• Nassar Case (Title VII Context): In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that retaliation claims under Title VII require "but for" causation. While this decision directly applies to Title VII, it has influenced how courts view causation in other employment law contexts, including the FMLA.
• FMLA-specific Cases: Various courts have interpreted FMLA claims differently, with some circuits favoring the "motivating factor" standard for interference claims and the "but for" standard for retaliation claims.

Conclusion

In summary, the key difference between "motivating factor" and "but for" causation in FMLA lawsuits lies in the level of proof required. The "motivating factor" standard is more lenient and requires that the protected activity be one of the reasons for the adverse action, while the "but for" standard requires that the adverse action would not have occurred without the protected activity. Understanding these distinctions is critical for both employees and employers in navigating FMLA-related legal issues.

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