In an opinion issued July 19, the Second Circuit vacated a jury verdict in favor of the employer, ruling that the district court judge had instructed the jury to use an incorrect standard of proof under the Family and Medical Leave Act. Woods v. START Treatment & Recovery Centers, Inc., No. 16-1318 (2d Cir. July 19, 2017). The correct causation standard, the Court held, was not whether the employer would not have fired her “but for” her exercise of rights under the FMLA. Rather, the appropriate standard was whether the employee’s exercise of her rights under the FMLA was a “motivating factor” in the employer’s decision to fire her.

The plaintiff, a substance abuse counselor, brought an FMLA retaliation claim against her employer, a non-profit treatment and recovery center, after it terminated her employment in 2012. The plaintiff characterized her termination as retaliation for taking leave under the FMLA; the employer cited poor performance. At trial, the judge instructed the jury that the plaintiff needed to demonstrate that her FMLA leave was the “but-for” cause of her termination of employment, rather than a mere “motivating factor” in the decision. The jury returned a complete defense verdict for the employer, and the employer appealed. On appeal, the Second Circuit sided with the Department of Labor’s interpretation of the statute, which is that employers cannot use the taking of FMLA leave as a negative factor in employment actions. As such, the Court held, the judge’s failure to give a “motivating factor” instruction to the jury meant that the jury was wrongfully instructed in the law and its verdict could not stand.

The Second Circuit joins the Third Circuit (among others) in relaxing an FMLA plaintiff’s standard of proof in this way. In practice, employers may now have a more difficult time defending cases when an employee claims that FMLA leave was among other, legitimate reasons for the employer’s adverse employment action.