Catholic University Law Review Catholic University Law Review
Volume 75
Issue 2
Winter 2026
Article 10
2-20-2026
For What? Resolving the Causation Split for FMLA Retaliation For What? Resolving the Causation Split for FMLA Retaliation
Claims Claims
Lucy Wess
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Recommended Citation Recommended Citation
Lucy Wess,
For What? Resolving the Causation Split for FMLA Retaliation Claims
, 75 Cath. U. L. Rev. 373
(2025).
Available at: https://scholarship.law.edu/lawreview/vol75/iss2/10
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For What? Resolving the Causation Split for FMLA Retaliation Claims For What? Resolving the Causation Split for FMLA Retaliation Claims
Cover Page Footnote Cover Page Footnote
J.D., The Catholic University of America, Columbus School of Law (expected May 2026); B.A., University of
Maryland (2023). I would like to thank D. Michael Lyles for his valuable guidance and expertise throughout
the writing and research process for this Comment. I also would like to thank my family and friends for
their unwaivering support, patience, and kindness.
This comments is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol75/iss2/10
373
FOR$WHAT?$RESOLVING$THE$CAUSATION$SPLIT$FOR$
FMLA$RETALIATION$CLAIMS$
Lucy Wess
+
For over thirty years, the Family and Medical Leave Act (FMLA) has
provided working Americans the opportunity to maintain their professional
careers while juggling personal and familial health care needs. Like many other
employment law statutes, the FMLA prohibits retaliation by employers against
employees who exercise their rights under the statute. However, a circuit split
as to the correct causation standard for FMLA retaliation claims leaves
plaintiffs and defendant employers uncertain of case outcomes as well as the
legality of the employer’s conduct. The Fourth and Eleventh Circuits held that
the but-for causation standard is the proper standard in such retaliation cases.
However, the Second and Third Circuits held that the proper standard of
causation is the motivating factor standard. This Comment will examine the
causation standards applied to retaliation claims arising under different
employment law statutes including Title VII of the Civil Rights Act and the Age
Discrimination in Employment Act. This Comment will also assess the plain
language of the FMLA as well as the potential for deference to the Department
of Labor, which strongly endorses the motivating factor standard. This analysis
will lead to the conclusion that in spite of the but-for causation standard’s
application to other employment law issues, the motivating factor standard
should be enforced through amendment to the FMLA in order to better protect
plaintiff-employees.
+
J.D., The Catholic University of America, Columbus School of Law (expected May 2026); B.A.,
University of Maryland (2023). I would like to thank D. Michael Lyles for his valuable guidance
and expertise throughout the writing and research process for this Comment. I also would like to
thank my family and friends for their unwaivering support, patience, and kindness.
374 Catholic University Law Review [Vol. 75:2
INTRODUCTION ................................................................................................ 375!
I. FMLA’S ORIGIN, RIGHTS, AND RETALIATION ............................................ 377!
II. THE SOURCE OF THE SPLIT ......................................................................... 380!
A. FMLA .................................................................................................. 380!
B. Prima Facie Causation Language and Burden-Shifting Framework 381!
C. DOL’s Regulations ............................................................................. 383!
D. But-For Causation ............................................................................. 384!
1. Lapham v. Walgreen Company .................................................... 384!
2. Fry v. Rand Construction Corporation ........................................ 387!
E. But-For Causation in Title VII and Other Areas of Employment Law
........................................................................................................... 388!
1. University of Texas Southwestern Medical Center v. Nassar ...... 388!
2. Gross v. FBL Financial Services .................................................. 391!
F. The Motivating Factor Standard ........................................................ 392!
1. Chevron, U.S.A., Incorporated v. Natural Resources Defense
Council, Incorporated ............................................................... 392!
2. Woods v. START Treatment & Recovery Centers ........................ 393!
3. Egan v. Delaware Port Authority ................................................. 395!
G. Non-Chevron Deference: Loper Bright and Skidmore ...................... 397!
1. Loper Bright Enterprises v. Raimondo ........................................ 397!
2. Skidmore ....................................................................................... 397!
III. PARSING THE PROPER STANDARD ............................................................ 398!
A. Faults in But-For Causation ............................................................... 398!
B. Agency Deference for FMLA .............................................................. 400!
IV. THE MOTIVATING FACTOR STANDARD SHOULD PREVAIL ....................... 403!
CONCLUSION ................................................................................................... 406!
2026] For What? Resolving the FMLA Causation Split 375
INTRODUCTION
Debbi Harris says the Family and Medical Leave Act of 1993 (FMLA) saved
her family.
1
Debbi Harris and her husband, Victor, both already worked full-
time and cared for their two children when their third child, Josh, was born.
2
Not
only was Josh born eight weeks early, but he suffered several birth injuries and
medical conditions including a brain hemorrhage, anoxia, and hydrocephalus.
3
Debbi and Victor spent nights at the hospital and worked into the early hours of
the morning trying to juggle Josh’s medical treatments while struggling to stay
afloat financially.
4
The FMLA allowed Debbi to take time off work to care for
her son without the fear of losing her job or health insurance.
5
Luckily, Debbi
did not experience any adverse employment actions when returning to work,
though her company expressed negative attitudes towards her use of FMLA
benefits.
6
However, other employees who use FMLA benefits can find
themselves facing adverse employment actions, like pay cuts or termination,
upon exercising their entitlement to FMLA benefits.
7
In these circumstances,
retaliation claims may arise, requiring the courts to determine whether a causal
connection exists between the protected activity and the adverse treatment by
the employer. However, the issue of which causation standard to apply remains
1. Debbi Harris, How the Family and Medical Leave Act Saved My Family, THE ARC (Feb.
1, 2018), https://thearc.org/blog/family-medical-leave-act-saved-family/ [https://perma.cc/GL3B-
GTNP].
2. Id.
3. Id.; see also Brain Bleed, Hemorrhage (Intracranial Hemorrhage), CLEVELAND CLINIC
(Dec. 4, 2023), https://my.clevelandclinic.org/health/diseases/14480-brain-bleed-hemorrhage-
intracranial-hemorrhage [https://perma.cc/9XDV-EAFS] (explaining that a brain hemorrhage is a
life-threatening “type of stroke” causing “blood to pool between [the] brain and skull. . . .
prevent[ing] oxygen from reaching [the] brain”); Brain Injury Overview, CTR. FOR NEURO SKILLS,
https://www.neuroskills.com/brain-injury/brain-injury-overview/anoxia-and-hypoxia/
[https://perma.cc/G5V9-RDCX] (last visited Oct. 17, 2025) (“[A]noxia is a condition in which
there is an absence of oxygen supply to an organ’s tissues although there is adequate blood flow to
the tissue. . . . In severe cases of anoxia . . . the patient is often stuperous [sic] or comatose (in a
state of unconsciousness) for periods ranging from hours to days, weeks, or months. Seizures,
myoclonic jerks (muscle spasms or twitches), and neck stiffness may occur.”); Nat’l Inst. of
Neurological Disorders and Stroke, Hydrocephalus, NAT’L INSTS. OF HEALTH,
https://www.ninds.nih.gov/health-information/disorders/hydrocephalus [https://perma.cc/4HUB-
7HZ8] (last visited Oct. 17, 2025) (“Hydrocephalus is an abnormal buildup of cerebrospinal fluid
(CSF) deep within the brain. . . . caus[ing] the ventricles (cavities) within the brain to widen, putting
harmful pressure on the brain's tissues. . . . Excess buildup of CSF can keep the brain from
functioning properly and cause brain damage or even death.”).
4. Harris, supra note 1.
5. Id.
6. Id.
7. Retaliation for Requesting or Taking FMLA Leave, RICKARD MASKER PLC,
https://www.maskerfirm.com/practice-areas/workplace-retaliation/retaliation-for-requesting-or-
taking-fmla-leave/ [https://perma.cc/36WG-V9RP] (last visited Oct. 16, 2025) (advising that an
employee may have grounds for a retaliation claim in the event of a termination, pay cut, or other
adverse employment action relating to the use of FMLA benefits).
376 Catholic University Law Review [Vol. 75:2
unsettled amongst the federal circuit courts.
8
The key question arising in these
circumstances is whether a retaliation claim’s causation standard requires the
plaintiff to establish but-for causation, or to meet the motivating factor standard.
The answer has weighty implications on the ability of FMLA retaliation
plaintiffs to establish a prima facie case and recover compensatory or injunctive
relief for adverse employment actions.
9
This Comment will begin by examining the language of the FMLA and how
it informs the different circuits’ interpretations of the statute’s causation
standard. This Comment will contextualize this language by identifying its
significance in the prima facie stage of the broader McDonnell-Douglas burden-
shifting framework. Next, this Comment will introduce the circuit court opinions
that led to the circuit split and will explain the different rationales adopted by
the circuits in favor of the but-for causation standard and those in favor of the
motivating factor standard, respectively. Specifically, this Comment will
examine the Fourth and Eleventh Circuits’ arguments relating to but-for
causation and how Title VII and tort law inform the FMLA’s causation standard.
On the other side of the split, this Comment will analyze the Second and Third
Circuits’ arguments regarding deference to the Department of Labor (DOL)’s
suggested motivating factor standard. Then, this Comment will assess the DOL’s
reasoning for endorsing the motivating factor standard and whether deference
should be given to the DOL in light of the Skidmore deference doctrine and the
overturning of Chevron. Lastly, this Comment will consider policy arguments
in favor of the motivating factor standard by assessing Congress’s initial reason
for passing the FMLA and how mistreatment stemming from the assertion of
FMLA rights should not be hindered by the obstacles of but-for causation.
This Comment will ultimately argue that the motivating factor standard
should be the standard of causation for FMLA retaliation claims and should be
put in place by an amendment to the FMLA or through a DOL regulation that
provides enough persuasive force to pass under Skidmore deference. However,
this Comment will acknowledge that until this amendment can be made, the but-
for causation standard squares more closely with precedent and therefore should
8. See, e.g., Lapham v. Walgreen Co., 88 F.4th 879, 883 (11th Cir. 2023) (applying the “but-
for” causation standard); Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166
(2d Cir. 2017) (applying the “motivating-factor” standard); Fry v. Rand Constr. Corp., 964 F.3d
239, 245–46 (4th Cir. 2020) (noting disagreement among circuit courts regarding the appropriate
causation standard); Egan v. Del. River Port Auth., 851 F.3d 263, 273 (3d Cir. 2017) (discussing
uncertainty as to the proper standard for retaliation claims).
9. Ramon Martin, "Motivating Factor" v. "But For" Causation and FMLA Lawsuits, THE
JUSTICE L. FIRM, LLC (May 31, 2024), https://www.legaljusticematters.com/motivating-factor-v-
but-for-causation-and-fmla-lawsuits [https://perma.cc/EJH5-ZPNG] (explaining the implications
of applying but-for causation as opposed to the motivating factor standard since the motivating
factor standard sets a lower bar for plaintiffs to establish causation); Eleventh Circuit Deepens
Circuit Split Over Causation Standard for FMLA Retaliation Claims, PROSKAUER: LAW AND THE
WORKPLACE (Dec. 26, 2023), https://www.proskauer.com/blog/eleventh-circuit-deepens-circuit-
split-over-causation-standard-for-fmla-retaliation-claims [https://perma.cc/CCC3-KQP5].
2026] For What? Resolving the FMLA Causation Split 377
persist until the motivating factor standard can be enforced through amendment
to the FMLA.
I. FMLA’S ORIGIN, RIGHTS, AND RETALIATION
The Women’s Legal Defense Fund, now known as the National Partnership
for Women and Families, wrote the first draft of the FMLA in 1984.
10
The
legislation was introduced in Congress each year until it passed and was signed
into law by President Bill Clinton in 1993.
11
The statute’s purpose is to grant
temporary family leave or medical leave under certain circumstances to better
enable employees to balance work with the needs of their families or their own
health.
12
President Clinton regarded the statute as addressing “a ‘substantial and
growing need’ of a changing workforce.”
13
President Clinton highlighted three
major changes in the workforce that necessitated the FMLA: (1) the rise in
women entering the workforce; (2) the heightened cost of living, requiring dual
incomes in several households; and (3) the rapid growth of single-parent
families.
14
As evidence of the increase in women entering the workforce,
President Clinton explained that between 1965 and 1992, the percentage of
mothers who participated in the workforce while having minor children had
nearly doubled, and by 2005 half the people entering the workforce would be
women.
15
He also offered evidence for the increase in single-parent
households.
16
In 1992, twenty-seven percent of all families were single-parent
households and the percentage only increased since then.
17
In addition to these
three major changes, President Clinton identified an important cultural and
social shift, pointing out that younger Americans increasingly faced the “dual
10. History of the FMLA, NAT’L P’SHIP FOR WOMEN AND FAMS.,
https://nationalpartnership.org/economic-justice/family-medical-leave-act/history-of-the-fmla/
[https://perma.cc/58AR-SJM6] (last visited Oct. 16, 2025).
11. Id.
12. The Family and Medical Leave Act of 1993, U.S. DEP’T OF LAB.: WAGE & HOUR DIV.,
https://www.dol.gov/agencies/whd/laws-and-regulations/laws/fmla [https://perma.cc/4J8L-6EHR]
(last visited Oct. 16, 2025).
13. Ryan Golden, FMLA: The 30-year legacy of a celebrated — and complicated —
employment law, HR DIVE (Feb. 6, 2023), https://www.hrdive.com/news/fmla-30th-anniversary-
history-paid-leave/641972/ [https://perma.cc/6AXP-ZT5Y] (quoting William J. Clinton, Statement
on Signing the Family and Medical Leave Act of 1993, THE AM. PRESIDENCY PROJECT (Feb. 5,
1993), https://www.presidency.ucsb.edu/documents/statement-signing-the-family-and-medical-
leave-act-1993 [https://perma.cc/5WUJ-W7ZJ]).
14. Clinton, supra note 13.
15. Id.
16. Id.
17. Id.; Stephanie Kramer, U.S. has world’s highest rate of children living in single-parent
households, PEW RSCH. CTR. (Dec. 12, 2019), https://www.pewresearch.org/short-
reads/2019/12/12/u-s-children-more-likely-than-children-in-other-countries-to-live-with-just-one-
parent/ [https://perma.cc/WEY2-RRUN] (explaining the importance of making family and medical
leave available considering the unique familial circumstances in the United States).
378 Catholic University Law Review [Vol. 75:2
pressures of family and job” as “America’s population ag[ed].”
18
This shift
meant that more adults began to shoulder caretaking responsibilities for their
elderly parents while also working, and in many cases caring for their own
children.
19
In response to these major cultural, social, and economic changes in the U.S.,
the FMLA established several statutory rights for eligible employees. These
rights include:
Twelve workweeks of leave in a 12-month period for:
the birth of a child and to care for the newborn child within one year
of birth;
the placement with the employee of a child for adoption or foster
care and to care for the newly placed child within one year of
placement;
to care for the employee’s spouse, child, or parent who has a serious
health condition;
a serious health condition that makes the employee unable to
perform the essential functions of his or her job;
any qualifying exigency arising out of the fact that the employee’s
spouse, son, daughter, or parent is a covered military member on
“covered active duty;” or
Twenty-six work weeks of leave during a single 12-month period to
care for a covered servicemember with a serious injury or illness if the
eligible employee is the servicemember’s spouse, son, daughter,
parent, or next of kin (military caregiver leave).
20
Eligible employees must “[h]ave worked for their [covered] employer for at
least 12 months, [h]ave at least 1,250 hours of service with the employer during
the 12 months before their FMLA leave starts, and [w]ork at a location where
the employer has at least 50 employees within 75 miles.”
21
Covered employers
under the FMLA include: “Private-sector employers who employ 50 or more
employees in 20 or more workweeks in either the current calendar year or the
18. The shift as the “Baby Boomer” generation ages means that more adults are having to
care for their elderly parents, requiring more time taken off from work and therefore more
vulnerability to adverse employment action. The need for leave is perpetuated as generations taking
on the responsibility of caring for their parents also bear the responsibility of caring for their own
children. Clinton, supra note 13.
19. Id.
20. Family and Medical Leave Act, U.S. DEP’T OF LAB.: WAGE & HOUR DIV.,
https://www.dol.gov/agencies/whd/fmla [https://perma.cc/V667-52F4] (last visited Oct. 18, 2025).
21. Fact Sheet #28P: Taking Leave from Work When You or Your Family Member Has a
Serious Health Condition under the FMLA, U.S. DEP’T OF LAB.: WAGE & HOUR DIV. (Mar. 2025),
https://www.dol.gov/agencies/whd/fact-sheets/28p-taking-leave-when-you-or-family-has-health-
condition#:~:text=Eligible%20employees%20are%20those%20who%20work%20for,at%20least
%2050%20employees%20within%2075%20miles [https://perma.cc/NG8A-NMM8].
2026] For What? Resolving the FMLA Causation Split 379
previous calendar year, [p]ublic agencies . . . , and [l]ocal educational
agencies.”
22
When the statute was initially enacted, some employers had negative
reactions, as it required them to retain employees who would be absent and
therefore not contributing during periods of family or medical leave.
23
Twenty
years after the FMLA’s enactment, 91% of employers reported that “complying
with the FMLA has either no noticeable effect or a positive effect on business
operations.”
24
However, instances of retaliation still occurr when employers do
not respect the use of FMLA rights or respond to them with adverse employment
actions. The FMLA specifically addresses retaliation claims that may arise under
the statute by stating that “[i]t shall be unlawful for any employer to discharge
or in any other manner discriminate against any individual for opposing any
practice made unlawful by this subchapter” and that “[i]t shall be unlawful for
any employer to interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under this title.”
25
Retaliation can take several different forms, including termination of the
employee, demotion, a reduction in pay, or harassment.
26
Retaliation claims give
plaintiff-employees the chance to recover damages or injunctive relief when they
believe an employer retaliated against them based on their exercise of FMLA
rights.
27
However, the statute is unclear as to the burden that the plaintiff-
employee carries in showing that their use of FMLA benefits is causally linked
to the adverse employment actions.
28
Some circuits hold that the but-for
22. Id.
23. Harris, supra note 1 (discussing how, in Harris’s case, her “boss and some of [her]
colleagues were openly critical of [her] need to take [leave], implying that [her] son’s condition
would simply create a lasting burden for the organization.” Harris also explains that she was
required by her employer to “use up all of [her] vacation, sick time, and long- and short-term
disability” before using FMLA benefits).
24. Family and Medical Leave Act Benefits Workers and Their Families, Employers, U.S.
DEP’T OF LAB.: WAGE & HOUR DIV. (Feb. 4, 2013),
https://www.dol.gov/newsroom/releases/whd/whd20130204-
0#:~:text=The%20FMLA%20is%20working.%22,a%20serious%20injury%20or%20illness
[https://perma.cc/2KV8-W3YG].
25. Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2615(a) (2018).
26. Rodney Mesriani, What is an Adverse Employment Action?, MESRIANI L. GRP. (July 19,
2024), https://www.mesrianilaw.com/blog/what-is-considered-an-adverse-employment-action/
[https://perma.cc/A7FF-W48W] (explaining that adverse employment actions can take the form of
demotions, pay cuts, terminations, mistreatment at work, etc.).
27. 29 U.S.C. § 2617(a)(1)(A)(i) (providing that employees may recover for wages, salary,
employment benefits, or other compensation or any actual monetary losses that result from an
employer's FMLA violation); id. § 2617(b) (authorizing courts to provide appropriate equitable
relief, such as employment, reinstatement, and promotion).
28. See, e.g., Lapham v. Walgreen Co., 88 F.4th 879, 883, 894 (11th Cir. 2023) (applying the
“but-for” causation standard to FMLA retaliation claims); Woods v. START Treatment &
Recovery Ctrs., Inc., 864 F.3d 158, 165–66 (2d Cir. 2017) (applying the “motivation-factor”
standard); Fry v. Rand Constr. Corp., 964 F.3d 239, 244–45 (4th Cir. 2020) (recognizing different
380 Catholic University Law Review [Vol. 75:2
causation standard is the proper standard, but others reject but-for causation in
favor of the motivating factor standard, thus creating a difference in law or a
“circuit split.”
29
II. THE SOURCE OF THE SPLIT
A. FMLA
The FMLA provides that eligible employees are entitled to leave in certain
circumstances and specifies the rights that an employee has when returning to
work following a period of leave.
30
Eligible employees are entitled to:
12 workweeks of leave . . . for one or more of the following:
. Because of the birth of a son or daughter of the employee and in
order to care for such son or daughter.
. Because of the placement of a son or daughter with the employee
for adoption or foster care.
. In order to care for the spouse, or a son, daughter, or parent, of the
employee, if such spouse, son, daughter, or parent has a serious
health condition.
. Because of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.
. Because of any qualifying exigency (as the Secretary shall, by
regulation, determine) arising out of the fact that the spouse, or a
son, daughter, or parent of the employee is on covered active duty
(or has been notified of an impending call or order to covered active
duty) in the Armed Forces.
. During the period beginning on the date the Emergency Family and
Medical Leave Expansion Act takes effect, and ending on
December 31, 2020, because of a qualifying need related to a public
health emergency in accordance with section 2620 of this title.
31
Following the use of leave under the FMLA, the employee is entitled “(A) to
be restored by the employer to the position of employment held by the employee
when leave commenced; or (B) to be restored to an equivalent position with
approaches among circuit courts regarding the causation standard); Egan v. Del. River Port Auth.,
851 F.3d 263, 272–74 (3d Cir. 2017) (discussing uncertainty as to the proper burden of proof in
FMLA retaliation claims).
29. Compare Lapham, 88 F.4th at 883 (applying the “but-for” causation standard to FMLA
retaliation claims), and Fry, 964 F.3d at 244–46 (recognizing and adopting the “but-for” causation
standard), with Woods, 864 F.3d at 166 (applying the “motivating-factor” standard to FMLA
retaliation claims), and Egan, 851 F.3d at 274 (applying the “motivating-factor” causation
standard).
30. 29 U.S.C. §§ 2612(a)(1), 2614(a).
31. § 2612(a)(1) (Supp. V 2024).
2026] For What? Resolving the FMLA Causation Split 381
equivalent . . . benefits, pay, and other terms or conditions of employment.”
32
The statute reiterates that the use of leave “shall not result in the loss of any
employment benefit accrued prior to the date on which the leave commenced.”
33
Section 105 of the FMLA details prohibited acts under the statute. The first
part of this section, known as the interference provision, provides that “[i]t shall
be unlawful for any employer to interfere with, restrain, or deny the exercise of
or the attempt to exercise, any right provided under this [title].”
34
The employer
also cannot “discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this [title].”
35
The FMLA
goes on to state that it is “unlawful for any person to discharge or in any other
manner discriminate against any individual because” that individual took actions
resulting in proceedings or relating to proceedings which involve “any right
provided under [title].”
36
B. Prima Facie Causation Language and Burden-Shifting Framework
Like many other laws prohibiting retaliation and adverse employment actions,
the FMLA employs the McDonnell-Douglas burden-shifting framework for
retaliation claims.
37
The McDonnell-Douglas framework typically “requires a
plaintiff to make a prima facie case of discrimination, at which point the burden
shifts to the employer to offer a nondiscriminatory motive, and, if the employer
does so, the burden shifts back to the plaintiff to show that the employer’s stated
reason was a pretext.”
38
The causation standard is applicable at the prima facie
stage of the McDonnell-Douglas framework.
39
A prima facie showing of FMLA retaliation requires that a plaintiff
show: (1) “he was protected under the FMLA;”(2) “he suffered an
adverse employment action;” and (3) “he was treated less favorably
than an employee who had not requested leave under the FMLA or the
adverse decision was made because he sought protection under the
FMLA.”
40
32. § 2614(a)(1).
33. § 2614(a)(2).
34. § 2615(a)(1).
35. § 2615(a)(2).
36. § 2615(b).
37. Capps v. Mondelez Glob., LLC, 847 F.3d 144, 151 (3d Cir. 2017) (stating that the
McDonnell-Douglas framework must apply to the plaintiff’s FMLA retaliation claim).
38. Purtue v. Wis. Dep’t of Corr., 963 F.3d 598, 601–02 (7th Cir. 2020) (citing Skiba v. Ill.
Cent. R.R. Co., 884 F.3d 708, 719 (7th Cir. 2018)).
39. See Campos v. Steves & Sons, Inc., 10 F.4th 515, 527 (5th Cir. 2021) (stating that the
plaintiff must show “the adverse [employment] decision was made because he sought protection
under the FMLA”) (quoting Mauder v. Metro. Transit Auth., 446 F.3d 574, 583 (5th Cir. 2006)).
40. Id. (quoting Mauder, 446 F.3d at 583).
382 Catholic University Law Review [Vol. 75:2
After the plaintiff establishes a prima facie case, the burden shifts to the
employer to offer a legitimate, non-discriminatory reason for its actions.
41
If the
employer meets this burden, the burden shifts again to the plaintiff to show that
the reason offered by the employer is pretextual.
42
While courts identify the key language in the threshold prima facie showing
to be that the adverse employment action must be “causally linked” to the FMLA
protected activity or “because” the employee sought protection under the
FMLA, the statute itself uses the language “for.”
43
This language comes from
the text of FMLA’s “retaliation provisions,” stating that the employer cannot
“discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful by this [title].”
44
However, the DOL also
posits that retaliation claims derive from the “interference provision” of FMLA
which states that “[i]t shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided
under this [title].”
45
The language of the retaliation provisions as well as DOL’s
assertion that retaliation claims arise from the interference provision mark the
origins of the circuit split as to which causation standard should be applied in
FMLA retaliation claims.
46
The Fourth and Eleventh Circuits have held that but-for is the proper causation
standard by drawing on comparisons to tort law and Title VII employment
actions.
47
However, the Second and Third Circuits have favored a motivating
factor standard, drawing heavily on the standard proffered by the DOL under a
deference theory.
48
Courts across the country have explained “[a] ‘but-for’ cause
is one ‘without which the event could not have occurred.’”
49
The motivating
41. Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 999 (8th Cir. 2011).
42. Id.
43. Brandt v. City of Cedar Falls, 37 F.4th 470, 480 (8th Cir. 2022) (quoting Wierman, 638
F.3d at 999); Campos, 10 F.4th at 527 (quoting Mauder, 446 F.3d at 583); Family and Medical
Leave Act of 1993, 29 U.S.C. § 2615(a)(2) (2018).
44. 29 U.S.C. § 2615(a)(2) (emphasis added).
45. Id. § 2615(a)(1).
46. Meghan VanGilder, In Search of a Standard: Unraveling the Emerging Circuit Split Over
the Proper Causation Standard for Retaliation Claims under the FMLA, UNIV. OF CINN. L. R.
BLOG (Aug. 7, 2024), https://uclawreview.org/2024/08/07/in-search-of-a-standard-unraveling-the-
emerging-circuit-split-over-the-proper-causation-standard-for-retaliation-claims-under-the-fmla/
[https://perma.cc/JLW5-W7QZ].
47. Fry v. Rand Constr. Corp., 964 F.3d 239, 246 (4th Cir. 2020) (quoting Foster v. Univ. of
Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015)); Lapham v. Walgreen Co., 88 F.4th 879, 893
(11th Cir. 2023).
48. Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017);
Egan v. Del. River Port Auth., 851 F.3d 263, 273–74 (3d Cir. 2017).
49. Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 438 (Tex. 2017) (quoting But-
For Cause, BLACK’S LAW DICTIONARY (10th ed. 2014); Burlington Ins. Co. v. NYC Transit Auth.,
29 NY.3d 313, 321 (2017); Nance v. Parks, 266 N.C. 206, 209 (1966); Joshi v. Providence Health
Sys. of Or. Corp., 198 Or. App. 535, 542 (2005).
2026] For What? Resolving the FMLA Causation Split 383
factor standard is the more plaintiff-friendly of the two because but-for causation
sets a higher bar for plaintiff-employees to prove a causal link between their
protected FMLA action and the adverse employment action they faced. Under
the but-for standard “it is not enough that a request for FMLA leave (or any other
protected activity under the FMLA) motivated any adverse employment
action.”
50
By contrast, under the motivating factor standard, exercise of FMLA
benefits need not be the only factor in the employer taking an adverse
employment action, but can be just one of several factors as long as the protected
activity played a part in motivating the defendant-employer’s decision.
51
C. DOL’s Regulations
After the FMLA was enacted in 1993, the DOL endorsed the motivating factor
standard in two federal regulations.
52
First, 29 C.F.R. § 825.220(c) provides that
“employers cannot use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary actions.”
53
The
negative factor standard that the DOL proposes is the same as the motivating
factor mentioned in the circuit court opinions.
54
In a separate regulation, the
DOL also suggests that retaliation claims under FMLA arise under § 2615(a)(1),
the interference provision, instead of § 2615(a)(2), which has previously been
thought of as one of the FMLA’s retaliation provisions.
55
In this regulation, DOL
says “that the [FMLA’s] prohibition on interference in 29 U.S.C. 2615(a)(1)
includes claims that an employer has discriminated or retaliated against an
employee for having exercised his or her FMLA rights.”
56
50. Cesar Escalante, But-For, or Not But-For: That Is the Question for FMLA Retaliation
Claims, TROUTMAN PEPPER LOCKE (June 10, 2024),
https://www.lockelord.com/newsandevents/publications/2024/06/fmla-retaliation-claims/
[https://perma.cc/3AM5-2GQG].
51. Id. The use of FMLA leave is an example of a motivating factor in an FMLA retaliation
case where the employer took an adverse employment action such as cutting the employee’s pay.
The use of FMLA leave need not be the only reason for the pay cut, but as long as it was one reason
that motivated the pay cut, it will qualify as a motivating factor. This means that other factors such
as performance or company spending can still have been part of the employer’s decision to cut the
employee’s pay, but the causation standard is satisfied so long as one of the factors was the use of
FMLA benefits.
52. Protection for employees who request leave or otherwise assert FMLA rights, 29 C.F.R.
§ 825.220(c) (2024); The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934, 67986 (Nov.
17, 2008) (to be codified at 29 C.F.R. pt. 825).
53. 29 C.F.R. § 825.220(c).
54. Id.; Nathaniel M. Glasser, Second Circuit Adopts “Motivating Factor” Causation
Standard for FMLA Retaliation Claims, EPSTEIN BECKER GREEN (July 24, 2017),
https://www.healthlawadvisor.com/second-circuit-adopts-motivating-factor-causation-standard-
for-fmla-retaliation-claims [https://perma.cc/KH9A-C7G4]; Woods v. START Treatment &
Recovery Ctrs., Inc., 864 F.3d 158, 168 (2d Cir. 2017) (quoting 29 C.F.R. § 825.220(c)).
55. The Family and Medical Leave Act of 1993, 73 Fed. Reg. at 67986.
56. Id.
384 Catholic University Law Review [Vol. 75:2
D. But-For Causation
The but-for causation analysis “literally embraces every event that hindsight
can logically identify in the causative chain.”
57
The “but-for standard is satisfied
only by evidence that an adverse employment action would not have happened
but-for the protected activity.”
58
But-for causation was recently applied in
FMLA retaliation cases by the Eleventh Circuit in Lapham v. Walgreen
Company and the Fourth Circuit in Fry v. Rand Construction Corporation.
59
1. Lapham v. Walgreen Company
Lapham involved an employee for Walgreens, Doris Lapham, who worked
for the company for over a decade before her employer fired her in April 2017.
60
Ms. Lapham asserted that she was fired as a retaliatory act in response to her
taking leave under FMLA to care for her son who had Lennox-Gastaut syndrome
and Dravet syndrome.
61
However, Walgreens contested this, stating that its
actual reasons for firing Ms. Lapham were insubordination and dishonesty.
62
In the years leading up to Ms. Lapham’s termination, she received
performance ratings that varied between achieving expectations and not
achieving expectations, along with comments regarding “some performance
issues.”
63
She was placed on a performance improvement plan shortly after
transferring to a new store location.
64
In April 2017, Lapham’s manager,
Shelton, spoke to Human Resources (HR) about Lapham’s performance and
57. Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 438 (Tex. 2017) (quoting Plains
Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296, 308 (Tex. 2015)) (explaining
that but-for causation considers all contributing factors and whether the ultimate outcome could
have possibly taken place without a particular factor being at play).
58. Escalante, supra note 50.
59. Fry v. Rand Constr. Corp., 964 F.3d 239, 246 (4th Cir. 2020) (applying the but-for
causation standard where an employee was terminated after returning from FMLA leave); Lapham
v. Walgreen Co., 88 F.4th 879, 893 (11th Cir. 2023) (applying the but-for standard after comparison
to Title VII standards and tort law default standards).
60. Lapham, 88 F.4th at 883.
61. Id.; see also Nat’l Inst. of Neurological Disorders and Stroke, Lennox-Gastaut Syndrome,
NAT’L INSTS. OF HEALTH, https://www.ninds.nih.gov/health-information/disorders/lennox-
gastaut-syndrome [https://perma.cc/M8ZG-NYM7] (last visited Oct. 9, 2025) (explaining that
“Lennox-Gastaut Syndrome is a severe form of epilepsy” and that “most people living with
Lennox-Gastaut syndrome experience some degree of impaired intellectual functioning or
information processing, along with developmental delays and behavioral disturbances”); Nat’l Inst.
of Neurological Disorders and Stroke, Dravet Syndrome, NAT’L INSTS. OF HEALTH,
https://www.ninds.nih.gov/health-information/disorders/dravet-syndrome [https://perma.cc/S2U9-
73H8] (last visited Oct. 9, 2025) (explaining that Dravet Syndrome is “an epilepsy condition”
typically involving “convulsive seizures” which are often “prolonged and involve half of the
body”).
62. Lapham, 88 F.4th at 883.
63. Id. at 883–84.
64. Id at 884.
2026] For What? Resolving the FMLA Causation Split 385
stated “that Lapham was ‘actively disregarding instructions,’ lying to
management, and ‘sabotaging the store.’”
65
In Shelton’s conversations with HR,
she mentioned Lapham’s requests for FMLA leave, stating that Lapham tried to
take days off prior to her requests being approved.
66
The HR department told
Shelton that they would support her decision to fire Lapham, but advised her
that if she did so, she should make it clear that the termination is based on poor
performance, not Lapham’s FMLA requests.
67
Lapham brought four claims against Walgreens: (1) retaliation in violation of
the Florida Private Sector Whistleblower Act (FWA); (2) retaliation in violation
of the FMLA; (3) interference in violation of the FMLA; and (4) retaliation in
violation of the Florida Civil Rights Acts.
68
On the FMLA retaliation claim, the
district court found that Lapham established a prima facie case of retaliation and
specifically satisfied the causation element by using the motivating factor
standard and showing a “close temporal proximity” between the protected
activity and the adverse action.
69
Walgreens filed a motion for reconsideration,
arguing that the proper causation standard was but-for causation and that the
court should not have found that Lapham established a prima facie retaliation
claim.
70
The district court agreed with Walgreens and granted the motion for
reconsideration.
71
The court then applied but-for causation based on the decision
in University of Texas Southwestern Medical Center v. Nassar, and decided that
under the new causation standard, Lapham could not establish that Walgreens’
reasons were pretextual or that but for her FMLA action, she would not have
been fired.
72
Lapham timely appealed to the Eleventh Circuit Court of Appeals.
73
The Eleventh Circuit rejected Lapham’s argument that the McDonnell-
Douglas framework is inapplicable since the call records between Shelton and
HR were direct evidence of retaliation.
74
The Eleventh Circuit held that the call
records only showed that Lapham’s FMLA requests were mentioned, but they
did not necessarily show that the requests were the reason for Lapham’s
termination.
75
The Eleventh Circuit also went on to reject Lapham’s contention
65. Id at 885.
66. Id. at 885–86.
67. Id. at 886.
68. Lapham, 88 F.4th at 886. The FWA states that “An employer may not take any retaliatory
personnel action against an employee because the employee has: (1) Disclosed, or threatened to
disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or
practice of the employer that is in violation of a law, rule, or regulation.” FLA. STAT. § 448.102
(2025).
69. Lapham, 88 F.4th at 887–88.
70. Id. at 888.
71. Id.
72. Id. (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351–53 (2013)).
73. Id.
74. Id. at 889.
75. Lapham, 88 F.4th at 889.
386 Catholic University Law Review [Vol. 75:2
that the motivating-factor standard should be used instead of the but-for
causation standard.
76
Lapham argued that the Eleventh Circuit should defer to the DOL’s assertion
that the motivating factor test must be applied for FMLA retaliation.
77
The
circuit acknowledged that Chevron U.S.A. Incorporated v. NRDC required it to
“defer to an agency’s interpretation of a statute only when Congress has not
directly spoken on the precise question at issue and the agency’s interpretation
is rational and consistent with the statute.”
78
However, the Eleventh Circuit
decided that the deference argument failed because Congress directly addressed
the issue of causation by including language equivalent to “because of” like that
in Nassar, in which the Supreme Court applied but-for causation.
79
The Supreme Court reasoned, as explained by the Eleventh Circuit, that but-
for causation is used as the default standard for tort law, as well as the standard
for Title VII retaliation claims, therefore it should be used in FMLA cases.
80
Lapham uses the logic set forth in Nassar to suggest that “‘absent an indication
to the contrary in the statute itself,’ a statute that sounds in tort is ‘presumed to
have incorporated’ the default but-for standard.”
81
Taking this reasoning a step
further, Lapham explained that the but-for causation standard must apply to
FMLA retaliation claims because “the retaliation provisions of . . . the FMLA . . .
are sufficiently similar to the retaliation provision of Title VII for Nassar to be
especially instructive.”
82
The Eleventh Circuit specifically noted that both the
FMLA and Title VII “use ‘because [of]’ language or an equivalent.”
83
The Eleventh Circuit solidified its decision to apply but-for causation in
Lapham six months later in Boan v. Florida Department of Corrections.
84
In
Boan, the Eleventh Circuit held that temporal proximity between the plaintiff’s
return from FMLA leave and her transfer was not enough to meet the causation
76. Id. at 890–93.
77. Id. at 893.
78. Id. (finding that on the first prong of Chevron, Congress had not explicitly mentioned a
causation standard and therefore was silent with respect to the causation issue, and on the second
prong determining that DOL’s interpretation of the interference provision as including retaliation
claims and requiring a negative factor or motivating factor standard was reasonable).
79. Id.
80. Id. at 891–92 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013)).
81. Lapham, 88 F.4th 891 (quoting Nassar, 570 U.S. at 347) (reasoning that default tort laws,
specifically but-for causation, should apply because FMLA is ambiguous as to which causation
standard must apply for retaliation claims).
82. Id. at 892.
83. Id.
84. Boan v. Fla. Dep’t of Corr., No.23-13116, 2024 U.S. App. LEXIS 15061, at *4–5 (11th
Cir. June 21, 2024) (applying but-for causation, the court held that temporal proximity between the
plaintiff’s return from FMLA leave and her transfer was insufficient to show causation, and she
therefore failed on her retaliation claim).
2026] For What? Resolving the FMLA Causation Split 387
requirement for FMLA retaliation when she learned of the transfer prior to
taking FMLA leave.
85
2. Fry v. Rand Construction Corporation
In Fry, the plaintiff worked for Rand Construction, a general contractor
company headquartered in Washington, D.C. that specialized in commercial
tenant interiors.
86
Arlene Fry “served as an administrative assistant to Linda
Rabbitt, Rand’s Chief Executive Officer and founder.”
87
Fry developed some
performance issues related to responding to Rabbitt’s emails and notifying
Rabbitt of administrative changes.
88
Rabbitt also complained that Fry nearly
caused her to miss a meeting with an important client and was continuously
“making too many mistakes.”
89
Fry was diagnosed with multiple sclerosis six
years prior in 2010 and now requested two weeks of FMLA leave, which was
approved.
90
After returning from FMLA leave, Fry was met with harsh
comments from Rabbitt and was transferred to work for a different official in
the company.
91
However, Fry’s new supervisor did not have enough work for
Fry to be employed full-time, therefore Fry could only be employed part-time
until the set date for her departure from the company.
92
Fry sued the comany for retaliation resulting from her use of FMLA leave.
93
The district court held that Fry established a prima facie case of retaliation, the
company established a legitimate nondiscriminatory reason for Fry, and lastly,
that Fry “failed to introduce evidence from which a jury could reasonably find
that Rand's proffered reason was untrue or a pretext.”
94
In Fry, the Fourth Circuit applied the but-for causation standard, but did not
delve into the tort law and Title VII analogy presented in Lapham.
95
Although
the plaintiff in Fry argued that the motivating factor standard should apply
85. Id.
86. Fry v. Rand Constr. Corp., 964 F.3d 239, 241 (4th Cir. 2020); About Rand, RAND CONST.,
https://randcc.com/company/ [https://perma.cc/GF2M-3C6V] (last visited Oct. 9, 2025).
87. Fry, 964 F.3d at 241.
88. Id.
89. Id.
90. Id. at 242; Multiple Sclerosis (MS), JOHNS HOPKINS MED.,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/multiple-sclerosis-ms
[https://perma.cc/3TRW-FZ4P] (last visited Sep. 29, 2025) (explaining that “[m]ultiple sclerosis
(MS) is a long-lasting (chronic) disease of the central nervous system” where “the body attacks
itself by mistake.” Some people with MS may “lose their ability to see clearly, write, speak, or walk
when communication between the brain and other parts of the body becomes disrupted.”).
91. Fry, 964 F.3d at 242.
92. Id.
93. Id. at 243.
94. Id. (quoting Fry v. Rand, No. 1:17-cv-0878 (AJT/TCB), 2018 LEXIS 143886, at *24 (E.
D. Va. Aug. 22, 2018)).
95. Id. at 246.
388 Catholic University Law Review [Vol. 75:2
because that is the standard suggested by the DOL, the Fourth Circuit found that
it does not have to decide whether the DOL’s suggestion is the proper standard
because the plaintiff in this case specifically relied on the McDonnell Douglas
framework.
96
The Fourth Circuit explained that the “the McDonnell Douglas
framework has long demanded proof at the pretext stage that retaliation was a
but-for cause.”
97
Regarding the DOL’s argument for the motivating factor
standard arising under 29 U.S.C. § 2615(a)(1), the Fourth Circuit elaborated that
“[b]ecause Fry relie[d] on the McDonnell Douglas framework and its pretext
stage requires but-for causation, it does not matter which subsection of § 2615(a)
the claim arises under.”
98
E. But-For Causation in Title VII and Other Areas of Employment Law
1. University of Texas Southwestern Medical Center v. Nassar
In Lapham, the Eleventh Circuit pointed to Nassar, a case in which the
Supreme Court was tasked with “defin[ing] the proper standard of causation for
Title VII retaliation claims.”
99
Title VII is part of the Civil Rights Act of 1964
and serves to protect against employment discrimination based on race, color,
religion, sex and national origin.
100
Title VII is applicable to “employment
decisions, including recruitment, selections, terminations, and other decisions
concerning terms and conditions of employment.”
101
The retaliation provision
of Title VII is § 2000e-3(a), which states:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for
employment . . . because he has opposed any practice made an
unlawful employment practice by this [title], or because he has made
a charge, testified, assisted, or participated . . . in an investigation,
proceeding, or hearing under this [title].
102
96. Id. (treating the plaintiff’s reliance on the McDonnell Douglas burden-shifting framework
as dispositive, the court does not assess whether DOL’s regulation as to which FMLA provision
retaliation claims fall under is correct and leaves open the issue of whether the motivating factor
standard would be applied had the plaintiff not relied on the burden-shifting standard).
97. Fry, 964 F.3d at 246 (first quoting Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252
(4th Cir. 2015); then citing Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318–20
(4th Cir. 2005)).
98. Id.
99. Lapham v. Walgreen Co., 88 F.4th 879, 891 (11th Cir. 2023) (quoting Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338,346 (2013)).
100. Protections Against Discrimination and Other Prohibited Practices, FED. TRADE
COMM’N, https://www.ftc.gov/policy-notices/no-fear-act/protections-against-discrimination
[https://perma.cc/ZHL9-MXE7] (last visited Sep. 29, 2025).
101. Id.
102. Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-3(a) (2018).
2026] For What? Resolving the FMLA Causation Split 389
“To establish a Title VII retaliation claim, a plaintiff must show that: (1) she
engaged in protected activity; (2) her employer took a materially adverse job
action against her; and (3) the adverse employment action was caused by the
protected activity.”
103
A key piece of the analysis in Nassar is that the retaliation
provision is located in a different section of Title VII than the status-based
discrimination section, § 2000e-2(a), which states that it shall be unlawful for an
employer to “fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual . . . because of such individual’s race, color,
religion, sex, or national origin.”
104
In tackling the ambiguity related to the retaliation claims under Title VII, the
Supreme Court in Nassar determined that Title VII retaliation claims require
but-for causation, not the motivating factor standard.
105
The Court examined
several areas of tort law in which but-for causation was applied, including
negligence, intentional infliction of bodily harm, and other intentional torts.
106
The Court also looked at key structural components of Title VII and the
differences in addressing status-based discrimination as opposed to
retaliation.
107
Lastly, the Supreme Court examined the causation standard for
retaliation claims brought under the Age Discrimination in Employment Act.
108
In Nassar, the plaintiff was hired to work as an assistant professor at the
University of Texas Southwestern and a physician at the University’s affiliated
hospital.
109
The plaintiff asserted that his supervisor, Dr. Levine was biased
against him as evidenced by comments that “Middle Easterners are lazy” and
other scrutiny regarding his productivity.
110
The plaintiff complained to Dr.
Levine’s supervisor, Dr. Fitz, and ultimately decided to depart from the
University faculty while remaining an employee of the hospital.
111
Upon
departure from the faculty, the plaintiff sent a letter to Dr. Fitz and others,
explaining that he chose to depart due to the harassment he faced from Dr.
Levine on the basis of his race, religion, and culture.
112
After reading the letter,
Dr. Fitz protested the job offer that had been extended to the plaintiff by the
hospital, arguing that all staff physicians must be part of the University
103. What is Required to Establish a Title VII Retaliation Claim?, STEPHEN A. GLICKMAN,
P.C. (Jan. 27, 2022) https://glickmanpc.com/blog/what-is-required-to-establish-a-title-vii-
retaliation-claim/ [https://perma.cc/58UY-JXZ9].
104. Equal Employment Opportunity Act of 1972, § 2000e-2(a).
105. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346–47 (2013).
106. Id.
107. Id. at 351.
108. Id. at 343.
109. Id. at 344.
110. Id.
111. Nassar, 570 U.S. at 344.
112. Id.
390 Catholic University Law Review [Vol. 75:2
faculty.
113
Dr. Fitz made this protest after the plaintiff already resigned from his
job at the University.
114
The hospital subsequently withdrew its job offer.
115
The plaintiff-employee brought two Title VII claims. The first claim was for
status-based discrimination, and the second for retaliation against the plaintiff-
employee for his harassment complaints about Dr. Levine.
116
The district court
found in favor of the plaintiff-employee on both claims and awarded backpay as
well as compensatory damages.
117
On appeal, the Fifth Circuit affirmed the
decision on the plaintiff’s retaliation claim, on the theory that “retaliation claims
brought under § 2000e-3(a)—like claims of status-based discrimination under §
2000e-2(a)—require only a showing that retaliation was a motivating factor for
the adverse employment action, rather than its but-for cause.”
118
Similarly to the FMLA, Title VII does not provide a specific causation
standard for retaliation and instead uses vague language surrounding causation.
The retaliation provision of Title VII states that “[i]t shall be an unlawful
employment practice for an employer to discriminate against any of his
employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he [engaged in a specified
protected activity].”
119
The Supreme Court reasoned that Congress legislated
Title VII against the backdrop of “textbook tort law,” which finds that “an action
‘is not regarded as a cause of an event if the particular event would have occurred
without it.’”
120
The Court also suggested that these tort standards are the “default
rules.”
121
The Court reasoned that but-for causation was the proper standard under Title
VII because of the structure of the statute itself, which separates status-based
discrimination and retaliation claims into different sections.
122
For employees
alleging status-based discrimination under Title VII, the causation standard
comes from a subsection of the statute which was added in 1991 to provide that
“an unlawful employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a motivating
113. Id. at 345.
114. Id. at 344–45.
115. Id. at 345.
116. Id.
117. Nassar, 570 U.S. at 345.
118. Id.
119. Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-3(a) (2018) (emphasis
added).
120. Nassar, 570 U.S. at 347 (quoting W. PAGE KEETON ET AL., PROSSER & KEETON ON THE
LAW OF TORTS 265 (5th ed. 1984)) (explaining that the backdrop of textbook tort law suggests that
but-for causation, the default tort law standard, must be applied).
121. Id. (suggesting that the but-for causation standard should apply absent any explicitly
stated alternative standard, as is the case for the FMLA).
122. Id. at 351.
2026] For What? Resolving the FMLA Causation Split 391
factor for any employment practice, even though other factors also motivated
the practice.”
123
Therefore, the statute explicitly directs the use of a motivating
factor standard in status-based discrimination claims, not a but-for causation
standard.
The Court emphasized that Title VII’s anti-retaliation provision, which is set
forth in § 2000e-3(a), “appears in a different section from Title VII’s ban on
status-based discrimination” and so the standards which apply to status-based
discrimination could not be presumptively applied to retaliation.
124
Therefore,
instead of drawing from the status-based discrimination section for guidance on
the causation standard for retaliation claims, the Court presented but-for
causation as the proper causation standard due to its likeness to the Age
Discrimination in Employment Act of 1967 (ADEA) and default status in tort
law.
125
2. Gross v. FBL Financial Services
The determination in Nassar that but-for causation applies to Title VII
retaliation claims relies upon a comparison to disparate treatment claims under
the ADEA.
126
The ADEA “protects certain applicants and employees 40 years
of age and older from discrimination on the basis of age in hiring, promotion,
discharge, compensation, or terms, conditions or privileges of employment.”
127
The retaliation provision of the ADEA states that “[i]t shall be unlawful for an
employer to discriminate against any of his employees or applicants for
employment . . . because such individual . . . has opposed any practice made
unlawful by this section, or because such individual . . . participated in any
manner in an investigation, proceeding, or litigation under this [title].
128
Gross v. FBL Financial Services established that retaliation claims under the
ADEA are subject to but-for causation based on a textual and structural
analysis.
129
The Court in Gross concluded that the plain language of the ADEA,
specifically the word “because,” required a plaintiff to prove that age was the
“but-for” cause of the employer's adverse decision, citing case law “recognizing
that the phrase, ‘by reason of,’ requires . . . ‘but for’ causation,” and that “the
123. Equal Employment Opportunity Act of 1972, § 2000e-2(m).
124. Nassar, 570 U.S. at 351–52.
125. Id. at 353–54.
126. Id.
127. Age Discrimination, U.S. DEP’T OF LAB.,
https://www.dol.gov/general/topic/discrimination/agedisc [https://perma.cc/54DG-XRNZ] (last
visited Sep. 28, 2025).
128. Age Discrimination in Employment Amendments of 1996, 29 U.S.C. § 623(d) (2018).
129. Nassar, 570 U.S. at 339.
392 Catholic University Law Review [Vol. 75:2
phrase ‘based on’ indicates a but-for causal relationship.”
130
In Gross, the Court
referenced a case involving an alleged violation of the Fair Credit Reporting
Act.
131
In that case, the Supreme Court found that “[i]n common talk, the phrase
‘based on’ indicates a but-for causal relationship and thus a necessary logical
condition” and there is no substantive difference between the language “based
on” and the original statute which used the language “because of.”
132
The
Supreme Court further recognized that the language “by reason of” requires at
least a showing of but-for causation.
133
In Gross, the Court also addressed the
language “because of” within the ADEA by referencing dictionary definitions
which stated that the words “because of” typically mean “[b]y reason of.”
134
F. The Motivating Factor Standard
The motivating factor standard only requires the plaintiff to show that “[their]
request for FMLA leave (or other protected activity under the FMLA) was a
motivating factor for an adverse employment action, even though other factors
also motivated the adverse action.”
135
The motivating factor standard was
applied by the Second Circuit in Woods v. START Treatment & Recovery
Centers, Incorporated and the Third Circuit in Egan v. Delaware River Port
Authority.
136
1. Chevron, U.S.A., Incorporated v. Natural Resources Defense Council,
Incorporated
Chevron created a two step analysis when a court must review an agency’s
interpretation of a statute which the agency oversees the implementation of.
137
First . . . is the question whether Congress has directly spoken to the
precise question at issue. . . . If, however, the court determines
Congress has not directly addressed the precise question at issue, the
court does not simply impose its own construction on the statute, as
would be necessary in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with respect to the specific
130. Gross v. FBL Fin. Servs., 557 U.S. 167, 176–77 (2009) (citing Bridge v. Phoenix Bond
& Indem. Co., 553 U.S. 639, 653–54 (2008); Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63–64,
64 n.14 (2007).
131. Safeco, 551 U.S. at 52.
132. Id. at 63–64, 64 n.14.
133. See Bridge, 553 U.S. at 653–54.
134. Gross, 557 U.S. at 176 (quoting Because of, 1 WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 194 (1966); Because, THE RANDOM HOUSE DICTIONARY OF THE ENGLISH
LANGUAGE 132 (1966)).
135. Escalante, supra note 50.
136. Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017);
Egan v. Del. River Port Auth., 851 F.3d 263, 282–83 (3d Cir. 2017).
137. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), overruled
by Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
2026] For What? Resolving the FMLA Causation Split 393
issue, the question for the court is whether the agency’s answer is
based on a permissible construction of the statute.
138
Congress authorized the Secretary of Labor to “prescribe such regulations as
are necessary to carry out [the FMLA].”
139
Therefore, instead of aligning with
other employment discrimination statutes which are enforced by the U.S. Equal
Employment Opportunity Commission (EEOC), the FMLA “is enforced by the
Wage and Hour Division of the [DOL] and. . . . [t]here is no exhaustion
requirement.”
140
The DOL’s enforcement authority also extends to the power to
issue “both interim and final regulations addressing the meaning of these phrases
pursuant to an express delegation of authority to the Secretary of Labor to
promulgate regulations ‘necessary to carry out’ the FMLA.”
141
This typically
consists of the DOL issuing such regulations, which must be followed by the
courts, in order to provide guidance as to terms that are not generally clear or
agreed upon.
142
For example, the DOL issued regulations addressing the
meaning of the phrases “care for,” “inpatient care” and “serious health
condition.”
143
Under the prior Chevron framework, deference would similarly
be given to the regulations that DOL has already issued regarding FMLA
retaliation’s origin in the interference clause. The DOL’s interpretation would
traditionally hold weight under Supreme Court precedent providing that “a prior
panel’s interpretation of an ambiguous statute is not binding when the panel
decision is overcome by an intervening, authoritative, and reasonable agency
interpretation.”
144
2. Woods v. START Treatment & Recovery Centers
In Woods, the plaintiff, Cassandra Woods, worked as a substance abuse
counselor for START, a non-profit which provides treatment services to
narcotics addicts.
145
Woods’s performance ratings were satisfactory until
START implemented a new note-taking program which Woods struggled with,
138. Id. at 842–43 (footnote omitted).
139. Family and Medical Leave Act of 1993, 29 U.S.C. § 2654 (2018).
140. Sutton v. Derosia, No. 1:11-cv-01426-LJO-JLT, 2012 U.S. Dist. LEXIS 147434, at *13
(E.D. Cal. Oct. 12, 2012) (quoting Bonzani v. Shinseki, No. CIV S-11-0007 EFB, 2011 U.S. Dist.
LEXIS 108798 at *5 (E.D. Cal. Sept. 26, 2011)).
141. Scamihorn v. Gen. Truck Drivers, Local 952, 282 F.3d 1078, 1082 (9th Cir. 2002)
(quoting 29 U.S.C. § 2654).
142. Id.
143. Id. at 1082, 1084 (9th Cir. 2002); Inpatient Care, 29 C.F.R. § 825.114 (2024) (interpreting
inpatient care to mean “an overnight stay in a hospital, hospice, or residential medical care
facility”).
144. Fry v. Rand Constr. Corp., 964 F.3d 239, 245 (4th Cir. 2020); see Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982–83 (2005) (“Only a judicial
precedent holding that the statute unambiguously forecloses the agency’s interpretation, and
therefore contains no gap for the agency to fill, displaces a conflicting agency construction.”).
145. Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 162 (2d Cir. 2017).
394 Catholic University Law Review [Vol. 75:2
causing START to “determine[] that Woods was failing to achieve ‘required
outcomes’ in ‘compliance’ and ‘documentation.’”
146
Woods was eventually
placed on probation for “her on-going failure to perform [her] job duties as
directed . . . .”
147
START fired Woods, stating that the termination was due to
her “failure to maintain up-to-date patient notes and ‘on-going failure to perform
[her] job duties.’”
148
Woods contested that the real reason for her termination was her exercise of
FMLA benefits.
149
Woods suffered from severe anemia, for which she sought
medical leave multiple times under FMLA.
150
Woods used FMLA leave twice
over the course of two years while she was hospitalized for her anemia.
151
Twelve days after returning from leave, Woods’s direct supervisor
recommended that START fire her.
152
She was fired one week later.
153
Woods
then sued START, bringing interference and retaliation claims under the
FMLA.
154
The district court instructed the jury to apply the but-for standard of causation,
giving the specific instruction that “[f]or you to determine that the plaintiff was
terminated for taking FMLA leave, she must prove that the defendant would not
have terminated her if she had not taken FMLA leave, but everything else had
been the same.”
155
Woods challenged this instruction, claiming that it asked the
jury to apply the incorrect causation standard.
156
Before reaching the issue of which causation standard should be applied for
FMLA retaliation claims, the Second Circuit addressed which provision of the
FMLA constitutes the basis for retaliation claims. The Second Circuit decided
to adopt the First Circuit’s view from Hodgens v. General Dynamics
Corporation.
157
In Hodgens, the First Circuit decided that retaliation claims can
be read into the FMLA’s interference provision since discriminating against an
employee for exercising his FMLA rights would constitute an interference and
a restraint of his exercise of his rights under FMLA.
158
The Second Circuit in
146. Id. at 163.
147. Id.
148. Id.
149. Id. at 163–64.
150. Id. at 163.
151. Woods, 864 F.3d at 163.
152. Id. at 163–64.
153. Id. at 164.
154. Id.
155. Id. at 165.
156. Id.
157. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151 (1st Cir. 1998).
158. Id. at 160, 160 n.4; Woods, 864 F.3d at 167 (“We now hold that FMLA retaliation claims
like Woods's, i.e. terminations for exercising FMLA rights by, for example, taking legitimate
2026] For What? Resolving the FMLA Causation Split 395
Woods also emphasized that this approach is in alignment with the opinions of
the DOL set forth in regulations which state that “the prohibition against
interference includes a prohibition against retaliation as well as a prohibition
against discrimination.”
159
The Second Circuit then proceeded to determine that the motivating factor
standard is the appropriate test for causation in FMLA retaliation claims.
160
Using Chevron deference, the Second Circuit concluded that Congress is silent
on the issue of causation for FMLA retaliation claims and that the agency’s
interpretation is reasonable.
161
The Second Circuit pointed to the DOL, which
had endorsed the motivating factor standard in regulations following FMLA’s
enactment.
162
The DOL also submitted an amicus brief in favor of the plaintiff
in Woods, arguing that the motivating factor standard is the proper standard of
causation for FMLA retaliation.
163
Considering DOL’s stance on the matter, the
Second Circuit confirmed that the motivating factor standard is the correct test
for FMLA retaliation claims and that the district court erred by instructing the
jury to apply but-for causation.
164
3. Egan v. Delaware Port Authority
In Egan, the plaintiff, Joseph Egan, worked as a Projects Manager for the
Delaware Port Authority.
165
As a result of Egan’s migraine headaches which
worsened when he transferred to a new department, Egan applied for FMLA
leave.
166
Throughout his assignment with the new department, Egan had an issue
in which he reported his approximate hours as opposed to his actual hours.
167
A
witness overheard Egan’s supervisor angrily complain about Egan’s health
condition impacting his ability to perform tasks at work.
168
While Egan was on
FMLA leave, he received notice that “all ‘economic development functions’
were being eliminated . . . and he was terminated.”
169
Egan subsequently sued,
“alleging violations of the ADEA, [Americans with Disabilities Act], and
FMLA leave, are actionable under § 2615(a)(1). The plain language of § 2615(a)(1) supports this
conclusion.”) (empasis addded).
159. Woods, 864 F.3d at 167 (quoting The Family and Medical Leave Act of 1993, 73 Fed.
Reg. 67934, 67986 (Nov. 17, 2008) (to be codified at 29 C.F.R. pt. 825)) (internal quotations
omitted).
160. Id. at 169.
161. Id. at 168–69.
162. Protection for employees who request leave or otherwise assert FMLA rights, 29 C.F.R.
§ 825.220(c) (2024).
163. Woods, 864 F.3d at 168.
164. Id. at 169.
165. Egan v. Del. River Port Auth., 851 F.3d 263, 267 (3d Cir. 2017).
166. Id.
167. Id.
168. Id.
169. Id. at 268.
396 Catholic University Law Review [Vol. 75:2
FMLA,” for which “[t]he jury returned a verdict for the Port Authority on all
counts.”
170
Prior to its holding, the district court “denied Egan's request for a
mixed-motive instruction for his FMLA retaliation claim,” concluding that such
an instruction would be inappropriate in the FMLA context and that “Egan had
not presented direct evidence of retaliation.”
171
On appeal, the Third Circuit held that the proper causation standard was the
motivating factor test.
172
The Third Circuit based its decision on a regulation set
forth by the DOL, which led the Third Circuit to conclude that the question of
retaliation turns on whether the plaintiff submits evidence “direct or
circumstantial, permit[ting] a reasonable juror to conclude that the plaintiff’s use
of FMLA leave was a negative factor in the employer’s adverse employment
decision.”
173
In Woods, the DOL urged the Second Circuit to give Chevron
deference to the Department’s regulation at 29 C.F.R. 825.220(c), which the
DOL claims would compel a lesser causation standard.
174
That regulation
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,
promotions or disciplinary actions; nor can FMLA leave be counted
under no fault attendance policies.
175
The DOL offered that, “under Nassar, whether but-for causation applies turns
on . . . whether the statute contains language like ‘because’” and subsequently
“argues that FMLA’s retaliation provisions, §§ 2615(a)(2) (‘for’) and 2615(b)
(‘because’), do not authorize routine FMLA retaliation claims” because, as the
DOL suggested, “‘the source for the prohibition against retaliation’ is FMLA’s
interference provision, § 2615(a)(1).”
176
The interference provision of the
FMLA states that “[i]t shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right provided
170. Id. at 268–69.
171. Egan, 851 F.3d at 268–69.
172. Id. at 273–74.
173. Id. at 267; Protection for employees who request leave or otherwise assert FMLA rights,
29 C.F.R. § 825.220(c) (2024).
174. Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 168 (2017).
175. Id. at 168 (quoting 29 C.F.R. § 825.220(c)).
176. Brief for Defendant-Appellee at 51–52, Woods, 864 F.3d 158 (No. 16-1318) (citing Brief
for Sec’y of Lab. as Amicus Curiae Supporting Plantiff-Appellant at 7, 15, Woods, 864 F.3d 158
(No. 16-1318)); Family and Medical Leave Act of 1993, 29 U.S.C. § 2615(a)(1)–(2), (b) (2018).
2026] For What? Resolving the FMLA Causation Split 397
under this subchapter.”
177
Therefore, the Third Circuit applied the motivating
factor standard in Egan and vacated the judgment in favor of the defendant-
employer.
178
G. Non-Chevron Deference: Loper Bright and Skidmore
Regardless of whether the DOL’s argument is strong or convincing, under
Chevron deference, courts would be compelled to defer to the DOL’s reasoning
and suggested negtative factor standard.
179
While Chevron deference was a key
reason for the Second and Third Circuits’ application of the motivating factor
standard, the state of agency deference has drastically changed since the Second
and Third Circuits applied the motivating factor standard in 2017.
1. Loper Bright Enterprises v. Raimondo
In June of 2024, the Supreme Court overturned Chevron in Loper Bright
Enterprises v. Raimondo, which held that agency deference must be left behind
because it “precludes courts from exercising the judicial power vested in them
by Article III to say what the law is,” and instead “[c]ourts must exercise their
independent judgment in deciding whether an agency has acted within its
statutory authority, as the [Administratige Procedure Act] requires.”
180
The
Administrative Procedure Act (APA) was intended to prevent administrative
agencies from becoming overzealous in a legislative capacity.
181
The Court
explains that the APA specifies “courts, not agencies, will decide ‘all relevant
questions of law’ arising on review of agency action, . . . —even those involving
ambiguous laws—and set aside any such action inconsistent with the law as they
interpret it.”
182
Prior to Loper Bright, the Eleventh and Fourth Circuits pushed
back against deference to the DOL because they believed that failure to state an
explicit standard in the text of the statute meant that Congress intended for the
but-for causation standard to apply.
183
Now that Chevron has been overturned,
the question is no longer as simple as whether to defer to Title VII and tort law
or to the DOL via Chevron deference.
2. Skidmore
Skidmore deference applies a sliding scale, where the degree of deference
varies based on the agency’s expertise, the technical complexity of the statutory
provisions being interpreted, the consistency of the agency’s current
interpretation with prior interpretations, and the formality with which the agency
177. 29 U.S.C. § 2615(a)(1).
178. Egan, 851 F.3d at 275.
179. Woods, 864 F.3d at 168–69.
180. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412, 433 (2024).
181. Id. at 391.
182. Id. at 392 (citing Administrative Procedure Act, 5 U.S.C. § 706 (2018)).
183. See Lapham v. Walgreen Co., 88 F.4th 879, 893 (11th Cir. 2023).
398 Catholic University Law Review [Vol. 75:2
issued the guidelines.
184
More significant weight is given to an agency's
interpretation that shows thorough consideration and valid reasoning, but the
courts are not bound to follow it if it lacks persuasive force.
185
Skidmore
deference may provide a window for courts to employ the motivating factor
standard, though the arguments in favor of each standard have important faults
to consider.
III. PARSING THE PROPER STANDARD
A. Faults in But-For Causation
Similarly to the Eleventh and Fourth Circuits analyses of the FMLA in
Lapham and Fry, the Supreme Court in Nassar explained that Congress
legislated Title VII against the backdrop of “textbook tort law,” which holds that
“an action ‘is not regarded as a cause of an event if the particular event would
have occurred without it.’”
186
TheCourt in Nassar also concluded that these tort
standards are the “default rules.”
187
Similarly, Lapham rearticulated Supreme
Court reasoning that “‘absent an indication to the contrary in the statute itself,’
a statute that sounds in tort is ‘presumed to have incorporated’ the default but-
for standard.”
188
This suggestion raises the question: what qualifies as “sounding
in tort?” Consequently, does FMLA retaliation fall within that meaning?
The United States Court of Federal Claims and United States Court of Appeals
for the Federal Circuit held that “retaliation claims under the [Fair Labor
Standards Act] sound in tort.”
189
Similarly the Supreme Court of Virginia
concluded “[a] tort is any civil wrong or injury; a wrongful act (not involving a
breach of contract) for which an action will lie.”
190
Tort is also defined as “the
violation of some duty owing to the plaintiff imposed by the general law or
otherwise,” or “a ‘legal wrong committed upon the person or property
independent of contract.’”
191
The fact that a duty giving rise to tort liability
184. Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 304–05 (3rd Cir. 2012); Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944).
185. Skidmore, 323 U.S. at 140; Nw. Youth Servs. v. Commonwealth, Dep’t of Pub. Welfare,
620 Pa. 140, 158 (2013); Env’t Integrity Project v. United States EPA, 969 F.3d 529, 540 (5th Cir.
2020); De La Mota v. United States Dep’t of Educ., 412 F.3d 71, 78 (2d Cir. 2005); Solis v.
Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 525 (6th Cir. 2011).
186. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013) (quoting W. PAGE
KEETON ET AL., PROSSER AND KEETON ON LAW OF TORTS 265 (5th ed. 1984)).
187. Id.
188. Lapham, 88 F.4th at 891 (quoting Nassar, 570 U.S. at 347).
189. Gibson v. United States, No. 19-529C, 2019 U.S. Claims LEXIS 1339, at *9 (Fed. Cl.
Oct. 7, 2019); Jentoft v. United States, 450 F.3d 1342, 1346 (Fed. Cir. 2006).
190. Glisson v. Loxley, 366 S.E.2d 68, 71 (Va. 1988) (quoting Jewett v. Ware, 107 Va. 802,
806 (Va. 1908)).
191. Id. at 71 (quoting Tort, BLACK'S LAW DICTIONARY (5th ed. 1979)).
2026] For What? Resolving the FMLA Causation Split 399
comes from federal statutory requirements does not mean that the claim does not
sound in tort.
192
One of the primary weaknesses in the but-for causation reasoning is the
assumption that the retaliation claims should fall within the default tort
standard—but-for causation. This weakness arises from an overreliance on
Gross, Nassar, and other case law to explain why but-for causation is proper,
despite Gross addressing disparate treatment, and Nassar addressing Title VII
retaliation.
193
The arguments that favor but-for causation on the basis of FMLA’s
textual language as analogized to other statutory language are also not
convincing. The language of FMLA is only “for,” but Lapham draws from cases
involving statutory language such as “because of,” which is more indicative of
but-for causation.
194
While a tort can be classified as “any civil wrong or injury,”
the Eleventh Circuit in Lapham lacked support explaining why retaliation
specifically should fit into a tort standard, when other adverse employment
claims fall under different causation standards.
195
Also, as described in Nassar,
the status-based discrimination claims were separated out from retaliation claims
for the significant purpose of assigning them each a different causation
standard.
196
The structural separation identified in Nassar shows that not all
adverse employment actions will, by default, fall under but-for causation.
197
The
structural separation in Title VII shows that not all wrongs in the context of
employment law can be analogized to one another, therefore the comparison to
the Supreme Court’s discussion of disparate treatment in Gross should not be
treated as a heavily weighted factor in determining the standard to apply to
retaliation.
198
Because the Supreme Court overturned Chevron, proponents of the
motivating factor standard must look outside of Chevron deference for support.
Even aside from the concerns surrounding the state of agency deference, the
192. Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 865 (4th Cir. 1994) (stating that “[t]he fact
that the duty giving rise to tort liability in this case arises from [a federal statute], rather than
common law, does not mean that an [action under the act] does not sound in tort”).
193. Heavy reliance on case law that deals with other types of adverse employment actions or
retaliation under a different statute is not dispositive, especially when the DOL, the administering
agency for the FMLA, argues for a different standard while remaining within the FMLA context.
Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009); Nassar, 570 U.S. at 338.
194. Lapham v. Walgreen Co., 88 F.4th 879, 892 (11th Cir. 2023).
195. Glisson, 366 S.E.2d at 71 (quoting Jewett, 107 Va. at 806); Lapham, 88 F.4th at 892.
196. Nassar, 570 U.S. at 351–54.
197. The fact that the retaliation claims were separated from the status-based discrimination
discussion in the statute, structurally and in relation to their respective causation standards, shows
that not all employment claims qualifying as torts will be subject to but-for causation just because
they are torts and the default standard for torts is but-for causation. In the FMLA context, even
though retaliation can be classified as a tort, this does not mean it will be subject to but-for causation
irrespective of other factors.
198. Nassar, 570 U.S. at 351–54.
400 Catholic University Law Review [Vol. 75:2
motivating factor standard also raises concerns about opening the door for
frivolous complaints by employees.
199
B. Agency Deference for FMLA
Following Loper Bright, uncertainty remains as to whether there is anything
left of agency deference and, if so, what the analysis would look like. Based on
the language of the Loper Bright opinion, one avenue that could still be
promising for agencies to influence the interpretation of ambiguities within
statutes is the Skidmore doctrine.
200
Many legal practitioners and scholars agree
that Skidmore will be the new standard following Loper Bright, but that the trend
will be towards classifying Skidmore not as deference, but as respect.
201
The
Skidmore doctrine is considered “a weaker form of deference” compared to
Chevron deference because, in contrast to Chevron deference, “Skidmore
deference does not grant controlling weight but rather respects the agency's
interpretation to the extent it is persuasive.”
202
Skidmore deference applies “a
sliding scale, where the degree of deference varies based on the agency's
expertise, the technical complexity of the statutory provisions being interpreted,
the consistency of the agency's current interpretation with prior interpretations,
and the formality with which the agency issued the guidelines.”
203
More
significant weight is given to “an agency's interpretation if it demonstrates
thorough consideration and valid reasoning, but [the courts] are not bound to
follow it if it lacks persuasive force.”
204
One view is that the Supreme Court in
Loper Bright endorsed Skidmore, but would not want to classify it as deference
199. Egan v. Del. River Port Auth., 851 F.3d 263, 283 (3d Cir. 2017) (Jordan, J. concurring)
(expressing the concern that retaliation claims are becoming more frequent, thus lessening the
standard may result in frivolous claims and greater burdens on administrative agencies and courts).
200. Daniel Deacon, Loper Bright, Skidmore, and the Gravitational Pull of Past Agency
Interpretations, YALE J. ON REG. (June 30, 2024), https://www.yalejreg.com/nc/loper-bright-
skidmore-and-the-gravitational-pull-of-past-agency-interpretations/ [https://perma.cc/LW5R-
397K].
201. Jack Fitzhenry & Caleb Sampson, After Chevron, a New Birth of Deference for the
Administrative State?, THE HERITAGE FOUND. (Aug. 15, 2024),
https://www.heritage.org/courts/commentary/after-chevron-new-birth-deference-the-
administrative-state [https://perma.cc/RBN2-G8UF] (“The clear trend within the Roberts Court has
been to contract the latitude of agency power, not to expand it. Given that tendency, it makes sense
that a more restrained notion of ‘Skidmore respect’ would win out over the more robust notion of
‘Skidmore deference.’”).
202. Env’t Integrity Project v. United States EPA, 969 F.3d 529, 540 (5th Cir. 2020); United
States v. Mead Corp., 533 U.S. 218, 234–35 (2001); Rafferty v. Denny's, Inc., 13 F.4th 1166, 1179
(11th Cir. 2021).
203. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 304 (3d Cir. 2012); Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944).
204. Skidmore, 323 U.S. at 140; Nw. Youth Servs. v. Commonwealth, Dep't of Pub. Welfare,
620 Pa. 140, 158 (2013); Env’t Integrity Project, 969 F.3d at 540; De La Mota v. United States
Dep’t of Educ., 412 F.3d 71, 78 (2nd Cir. 2005); Solis v. Laurelbrook Sanitarium & Sch., Inc., 642
F.3d 518, 525 (6th Cir. 2011).
2026] For What? Resolving the FMLA Causation Split 401
to agencies since the Court held that agency deference is prohibited by the
APA.
205
However, Skidmore could still be relevant if it is thought of as merely
“uncovering statutory meaning . . . [s]o the Loper Bright majority might say,
using it does not constitute deference any more than consulting a dictionary
does.”
206
Where agencies may now lack authority in terms of deference, they still have
distinct power through statutory discretion.
207
One view is that “Chevron
deference applies to statutory interpretations of ambiguous terms. But many
statutes unambiguously give agencies broad discretion to make policy decisions
[thus Loper Bright] should have no[] impact on how agencies apply their
authority under those mandates . . . .”
208
For instance, if Congress can be shown
to give unambiguous authority to the DOL in making policy decisions, then the
agency could retain its influence on FMLA’s causation standard for retaliation
claims without offending the Loper Bright decision. This would square
appropriately with the fact that the DOL already has been giving interpretations
that clarify phrases within the FMLA.
209
This power could also allow the DOL
to clarify the meaning of the causation language in the FMLA, in which case the
DOL could push the motivating factor standard forward in a way that would
require courts to adhere to the agency’s standard without dependence on
Chevron deference. Some scholars suggest that while Chevron deference was
struck down, agencies still hold significant power.
210
Without Chevron
deference, “Skidmore deference is once again the standard for judging agency
interpretations of statutes.”
211
Skidmore was the precedent prior to the Chevron
decision in 1984.
212
In the FMLA context, the DOL’s expertise, the complexity
of the FMLA’s retaliation provisions, and the formality with which the DOL
205. Dena Adler & Max Sarinsky, With or Without Chevron Deference, Agencies Have
Extensive Rulemaking Authorité, YALE J. ON REG. (May 13, 2024),
https://www.yalejreg.com/nc/with-or-without-chevron-deference-agencies-have-extensive-
rulemaking-authority/ [https://perma.cc/WHL6-Q8YX]; Loper Brigt Enters. v. Raimondo, 603
U.S. 369, Loper Bright Enters. v. Raimondo, 603 U.S. 369, 392–93 (2024).
206. Deacon, supra note 200.
207. Id.
208. Id.
209. Scamihorn v. Gen. Truck Drivers, Local 952, 282 F.3d 1078, 1082 (9th Cir. 2002).
210. Adler & Sarinsky, supra note 205 (suggesting that federal agencies still have great
influence in rulemaking via pathways outside of Chevron deference including statutes which confer
broad regulatory authority, statutes which unambiguously give policy discretion to agencies,
agency deference for factual ambiguities, “including those based on scientific or economic
analysis,” and Skidmore deference).
211. Yar R. Chaikovsky et al., Chevron is Done — What Does Loper mean for the PTAB and
ITC?, WHITE & CASE (July 1, 2024), https://www.whitecase.com/insight-alert/chevron-done-what-
does-loper-mean-ptab-and-
itc#:~:text=Since%20Chevron%20deference%20is%20overruled,Court%20announced%20Chevr
on%20in%201984 [https://perma.cc/22KT-WRGU].
212. Id.
402 Catholic University Law Review [Vol. 75:2
issued the motivating factor guidelines, are all factors that contribute to the
Skidmore deference analysis. Here, the DOL is considered to have expertise in
interpreting the FMLA because it has already been entrusted to provide
clarifications and interpretations for other ambiguous provisions in the statute.
213
However, the FMLA’s retaliation provisions are likely not considered complex
because the language is similar to other statutory provisions, such as Title VII
and the ADEA, which have not required complex agency interpretation.
214
Lastly, the DOL has been consistent in its interpretation of the FMLA to
require a motivating factor standard for retaliation claims.
215
This consistency
has been shown through two federal regulations favoring the standard, as well
as the DOL filing of an amicus brief in Second Circuit cases involving the
question as to the proper FMLA causation standard.
216
Even with these factors
leaning in favor of deference to the DOL’s interpretation, a court is not required
to adopt the DOL’s interpretation if it finds the interpretation to lack persuasive
force.
217
Instead, a court would likely reject the DOL’s interpretation found in
the federal regulations because the DOL asserts that retaliation claims derive
from the interference provision of the FMLA. However the DOL does not lend
an explanation as to why that must be the case, especially considering the
provision of the FMLA that is known as the “retaliation provision.”
218
The but-for causation standard is more strongly supported by prior precedent,
given that courts who applied the motivating factor standard did so on the basis
of Chevron deference. Even if Chevron deference was still available to support
the motivating factor standard, the second prong of Chevron may even weigh
against the motivating factor standard. As previously stated, the DOL ignores
the provisions of the FMLA which are thought to directly address retaliation and
asserts that retaliation claims actually arise from the interference provision.
219
This is not a clearly reasonable interpretation of the FMLA and therefore its
satisfaction of Chevron is questionable to begin with. The but-for causation
213. Scamihorn, 282 F.3d at 1084; Inpatient care, 29 C.F.R. § 825.114 (2024).
214. The language of FMLA is “for” which is similar to the language of Title VII’s retaliation
provision which uses “because” and ADEA which also uses “for” in its retaliation provision,
indicating that the provisions of FMLA are not particularly complex, but instead involve common
language seen in other employment law statutes. Equal Employment Opportunity Act of 1972, 42
U.S.C. § 2000e-2(a) (2018); 42 U.S.C. § 2000e-3(a); Age Discrimination in Employment Act of
1967, 29 U.S.C. § 623(d) (2018).
215. Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 168 (2d Cir. 2017);
Protection for employees who request leave or otherwise assert FMLA rights, 29 C.F.R. §
825.220(c) (2024).
216. Woods, 864 F.3d at 168; 29 C.F.R. 825.220(c).
217. Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 294–95 (3d Cir. 2012); Skidmore v. Swift
& Co., 323 U.S. 134, 140 (1944).
218. 29 C.F.R. § 825.220(c) (“employers cannot use the taking of FMLA leave as a negative
factor in employment actions, such as hiring, promotions or disciplinary actions”).
219. Id.
2026] For What? Resolving the FMLA Causation Split 403
standard is also the default standard in tort law, and therefore is a potentially
more “reasonable” interpretation of FMLA’s language.
220
The weaknesses in the motivating factor argument will likely prevent the
Supreme Court from resolving the circuit split in favor of the motivating factor
standard.
221
However, the motivating factor standard can still be implemented
through an amendment to the FMLA.
IV. THE MOTIVATING FACTOR STANDARD SHOULD PREVAIL
The but-for standard has merits in its analogy to Title VII from which many
employment claims derive, the plain language of the statute, and the unstable
state of deference to agencies like the DOL. However, from a policy standpoint,
the motivating factor standard better serves employees who have faced
retaliation because it sets a lower bar for plaintiffs to prove a causal link between
their use of FMLA benefits and their employer’s adverse employment action
against them.
222
The DOL’s motivating factor standard ignores relevant tort law and parallel
employment retaliation claims that for the most part employ the but-for standard
of causation.
223
Thus, as the case law stands, the but-for causation standard
adheres more closely to precedent and is more sensible in terms of the history of
employment law and retaliation standards. However, from the plaintiff’s
perspective, the negative impacts of the but-for standard of causation weighed
against the benefits enjoyed by plaintiffs under the motivating factor standard
cannot be ignored.
224
The motivating factor standard is far more beneficial to plaintiffs than the but-
for causation standard because it sets a lower bar for employees to establish a
connection between the adverse employment action and the exercise of FMLA
rights.
225
In 2020, nearly 1,000 FMLA complaints were filed, and
“approximately three-quarters alleged that the employee had been terminated,
demoted, or discriminated against in violation of their protected FMLA rights.
[Forty-eight] percent of complaints investigated identified a violation.”
226
The
220. Lapham v. Walgreen Co., 88 F.4th 879, 891 (11th Cir. 2023).
221. The culmination of precedent supporting but-for causation, the overruling of Chevron,
and the DOL’s reliance on the interference provision as opposed to the retaliation provisions of
FMLA weakens the argument for the motivating factor standard.
222. Escalante, supra note 50.
223. 29 C.F.R. § 825.220(c) (2024) (stating “employers cannot use the taking of FMLA leave
as a negative factor in employment actions, such as hiring, promotions or disciplinary actions,” but
making no reference to tort law or Title VII).
224. Escalante, supra note 50.
225. Id.
226. A primer on Family and Medical Leave Act (FMLA) retaliation claims, BACHMAN LAW,
https://ebachmanlaw.com/a-primer-on-family-and-medical-leave-act-fmla-retaliation-
claims/#:~:text=In%202020%2C%20966%20FMLA%20complaints,complaints%20investigated
%20identified%20a%20violation [https://perma.cc/TKP5-V7G8] (last visited Sep. 26, 2025).
404 Catholic University Law Review [Vol. 75:2
prevalence of FMLA retaliation claims and employee reliance on courts and
administrative agencies to provide damages and relief supports the need for
more accessible recovery through a less burdensome causation standard.
Seeing that the utilization of the motivating factor is in the interest of plaintiffs
who have suffered an adverse employment action, this standard would better
serve the protective purpose of FMLA as a whole.
227
In order to establish the
motivating factor standard, Skidmore deference is a potential pathway as long as
the DOL can argue the motivating factor standard with enough persuasive force
that a court would not deny it.
228
The DOL should amend its regulations, or issue
new regulations, setting forth a persuasive explanation as to why retaliation rests
in the interference provision and why that means the motivating factor standard
must apply.
Another avenue for gaining further protection for FMLA plaintiffs would be
through a direct amendment to the FMLA. The FMLA has already been
amended several times to include new protections, like military caregiver leave,
qualifying exigency leave, and temporary amendments during the COVID-19
pandemics.
229
Since Title VII has been central to the conversation surrounding
FMLA retaliation, in arguing for an amendment, DOL and members of Congress
would likely have to further differentiate the FMLA from Title VII.
230
Considering the DOL’s role in the enforcement and administration of FMLA,
had the FMLA been enacted today, the motivating factor standard would likely
be implemented into the law itself. The DOL exercised its enforcement power
several times by clarifying or even changing the meanings of provisions within
the FMLA.
231
Further, none of the factors that necessitated the FMLA have
227. Family and Medical Leave (FMLA), U.S. DEP’T OF LAB.,
https://www.dol.gov/general/topic/benefits-
leave/fmla#:~:text=FMLA%20is%20designed%20to%20help,opportunity%20for%20men%20an
d%20women [https://perma.cc/S5JJ-TYDL] (last visited Oct. 7, 2025) (stating that the FMLA was
“designed to help employees balance their work and family responsibilities”).
228. Nw. Youth Servs. v. Commonwealth, Dep’t of Pub. Welfare, 620 Pa. 140, 157–58 (2013);
Env’t Integrity Project v. United States EPA, 969 F.3d 529, 540–42 (5th Cir. 2020); Solis v.
Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 525 (6th Cir. 2011).
229. Amendments to the FMLA have provided leave benefits to families with military service
member caregivers, and during the COVID-19 pandemic provided paid leave options temporarily.
See Leave to care for a covered servicemember with a serious injury or illness (military caregiver
leave), 29 C.F.R. 825.127 (2024); Families First Coronavirus Response Act, Pub. L. No. 116-127,
134 Stat. 178 (2020).
230. Lapham v. Walgreen Co., 88 F.4th 879, 893 (11th Cir. 2023) (comparing Title VII
retaliation to retaliation under the FMLA to reach and apply the but-for causation standard).
231. See Megan A. Sholar, The History of Family Leave Policies in the United States, ORG. OF
AM. HISTORIANS, https://www.oah.org/tah/november-3/the-history-of-family-leave-policies-in-
the-united-
states/#:~:text=From%201986%20to%201990%2C%20legislators,FMLA%20would%20hurt%20
the%20economy [https://perma.cc/Y6XF-7L5Z] (last visited Sep. 29, 2025) (“In 2015 the U.S.
Department of Labor revised the definition of “spouse” under the FMLA to ensure that eligible
workers in a legal same-sex marriage can take FMLA leave to care for their spouse or family
2026] For What? Resolving the FMLA Causation Split 405
subsided since the time of its enactment. Several of the reasons that President
Bill Clinton asserted when signing the FMLA into law have stayed steady or
have become more prevalent since the enactment. President Clinton cited the
rise in women entering the workforce, the increase in single-parent households,
and the aging of the American population as reasons for enacting FMLA.
232
Since 1993, the rate of labor force participation in the American female
population has stayed roughly the same, but peaked in 1999 when the rate of
female participation in the workforce was 60%.
233
For all women, the projected
labor force change from 2021 to 2031 is an increase of 4,652,000 or 6.1%.
234
The number of single-parent households also continues to increase.
235
In 1994,
“[t]here were an estimated 11.4 million single parents . . . and their number has
been increasing by an average of 3.9 percent per year since 1990.”
236
Lastly, President Clinton justified the FMLA with reference to the dual
pressures placed on young Americans in the 1990s who had to simultaneously
care for their children and their parents as the older generation of Americans at
the time required caretaking and attention to health issues.
237
This concern
persists as the “Baby Boomer” generation ages, requiring greater care and
medical treatment, while their children have started families of their own, thus
perpetuating the “dual pressures” that President Clinton discussed in 1993.
238
Health Care researchers have termed this issue “The 2030 Problem,” having
predicted that the number of elders in 2030 will be more than double the number
in 2000.
239
Given that the reasons for the FMLA’s enactment have since amplified in
prevalence and severity, it is in the nation’s best interest to promote a causation
standard that allows plaintiffs to more easily assert retaliation claims. Doing so
will allow for FMLA to better protect American employees as it was intended
to do. If the FMLA were to be enacted today, the DOL would likely ensure that
member”); Definitions, 29 C.F.R. 825.102 (2024); Families First Coronavirus Response Act, Pub.
L. No. 116-127, 134 Stat. 178 (2020) (to be codified at 29 U.S.C. § 2601).
232. Clinton, supra note 13.
233. Christine Machovec, Working Women: Data from the Past, Present and Future, U.S.
DEP’T OF LAB. BLOG (Mar. 15, 2023), https://blog.dol.gov/2023/03/15/working-women-data-
from-the-past-present-and-future [https://perma.cc/VD69-3CQA].
234. Id.
235. Steve W. Rawlings, Households and Families, IPUMS CPS,
https://cps.ipums.org/cps/resources/cpr/9_ps.pdf [https://perma.cc/W4J6-Q7ZG] (last visited Oct.
9, 2025).
236. Id.
237. Clinton, supra note 13
238. Id.; James R. Knickman & Emily K. Snell, The 2030 Problem: Caring for Aging Baby
Boomers, 37 HEALTH SERVS. RES. 849 (Aug. 2002),
https://pmc.ncbi.nlm.nih.gov/articles/PMC1464018/ [https://perma.cc/Q6KH-JBYS].
239. Id. at 849–50.
406 Catholic University Law Review [Vol. 75:2
the motivating factor standard was clearly stated in the statute given its
enforcement authority and the protective purpose of the statute.
CONCLUSION
Regardless of which standard prevails, it is important that the circuit courts
apply a uniform standard under the FMLA because inconsistency strains a
plaintiff’s ability to realistically prepare for litigation and a lawyer’s ability to
advise clients.
240
If a plaintiff does not understand their burden in establishing
causation they are disadvantaged by this unsettled standard. The inconsistencies
in standards can also lead to forum shopping, which may be unfair because it
disturbs uniformity in the federal judicial system and may inconvenience the
defendant.
241
The motivating factor standard better serves the plaintiff as it sets
a lower bar for them to establish causation in a prima facie retaliation case.
242
Serving the best interests of the employee has always been central to FMLA’s
purpose and many even argue that the FMLA has not done enough to protect
employees.
243
Specifically, scholars and other interested parties identify the need
for paid-leave and urge that the unpaid leave offered by the FMLA is not enough
to protect employees in difficult medical and familial situations.
244
Given this
shortcoming, it is difficult to say that even more obstacles should be placed
before the plaintiff-employee by a strict causation standard.
245
Nonetheless, the precedent and analysis points more clearly to the application
of a but-for standard as the prevailing legal test, especially in the wake of Loper
Bright. While other avenues for the DOL to push the motivating factor standard
may still exist through statutory discretion and the Skidmore doctrine, the best
240. Deborah Beim & Kelly Rader, Evolution of Conflict in the Courts of Appeals 2 (June 25,
2015) (unpublished manuscript), (on file at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2623304 [https://perma.cc/ER6R-A75Y])
(“circuit splits have other potentially undesirable consequences: they make it difficult for lawyers
to advise their clients, invite additional litigation, circumscribe potentially legal conduct . . . and
possibly cast doubt on the legitimacy of the legal system itself”).
241. Richard Maloy, Forum Shopping? What’s Wrong With That?, 24 QLR 25, 27 (2005).
242. Escalante, supra note 50.
243. U.S. DEPT’T OF LAB., supra note 227.
244. Scholars and policy researchers suggest that FMLA is not doing enough for employees
and families since it only requires that employers provide unpaid leave and several families who
have taken advantage of their FMLA benefits still struggle to meet financial obligations as well as
familial or health needs. See Samantha Jean Quan Forsyth, Bringing Up Baby Under the FMLA:
How the Federal Unpaid Maternity Leave System in the United States Will Not Carry to Term, 24
WM. & MARY J. OF WOMEN & THE L. 379, 380–381 (2018); Jennifer Ludden, FMLA Not Really
Working for Many Employees, NPR (Feb. 5, 2013),
https://www.npr.org/2013/02/05/171078451/fmla-not-really-working-for-many-employees
[https://perma.cc/3224-8KYM]; KATHLEEN ROMIG & KATHLEEN BRYANT, A NATIONAL PAID
LEAVE PROGRAM WOULD HELP WORKERS, FAMILIES: SHOULD PRIORITIZE WORKERS OF COLOR
AND THOSE WITH LOW WAGES, 2–3 (Ctr. on Budget & Pol’y Priorities 2021).
245. Forsyth, supra note 244, at 383–84.
2026] For What? Resolving the FMLA Causation Split 407
way to protect plaintiffs under the FMLA would be to enact an amendment to
the statute clarifying the causation standard to require only a motivating factor
test, not but-for causation. The purpose of the statute was to protect employees
in difficult circumstances, thus a lower standard of causation would align more
closely with the purpose and goals of the FMLA and would prevent ambiguity
from here on out.
246
Aside from amendment to the FMLA, a Supreme Court
ruling on the issue would also bring clarity to the circuit split and prevent the
same concerns surrounding forum shopping. However, in 2021, the Supreme
Court denied a writ of certiorari on the matter of causation for FMLA retaliation
suits, therefore it is unlikely that the Supreme Court would rule on the same issue
only five years later.
247
Even though a Supreme Court ruling would bring clarity
to the debate, given the unlikelihood of such a ruling in the near future, the ideal
result would be an amendment to the FMLA. An amendment to mandate the use
of the motivating factor standard would allow plaintiffs to litigate with fewer
burdens placed on them, especially when considering plaintiffs who may be
bringing retaliation claims with limited time and resources.
246. U.S. DEP’T OF LAB., supra note 227 (stating that FMLA was “designed to help employees
balance their work and family responsibilities”).
247. Fry v. Rand Constr. Corp., 141 S. Ct. 2595 (2021).
