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FMLA Retaliation Standard Decided by EDNY Court

February 24, 2016: In 2014, Famighetti & Weinick, PLLC partner, Matt Weinick, wrote an article about the Supreme Court’s interpretation of Title VII’s retaliation provision. The decision held that plaintiff’s must prove that retaliation was the “but-for” reason that the employer took action against the employee. Before the decision, courts used a less stringent “motivating factor” standard. In his article, Weinick predicted that the decision would lead to uncertainty about the appropriate standard to apply to other anti-discrimination statutes’ retaliation provisions.  Indeed, the standard for various retaliation cases is being litigated in courtrooms across the country, including here in New York.

In the Federal Eastern District of New York, parties are preparing for a trial in a Family Medical Leave Act (“FMLA”) case.  Generally, the FMLA provides up to 12 weeks of unpaid leave for employees to attend to family or medical issues.  The statute’s anti-retaliation provision prohibits employers from retaliating against employees who use FMLA leave or otherwise exercise FMLA rights.

In preparing for trial, the parties asked the presiding judge, District Judge Donnelly, for a ruling on the appropriate standard to use for the jury instruction.  The employee argued that the motivating factor standard was appropriate while the employer argued that the but-for test should be used.

Judge Donnelly reviewed the Nassar Supreme Court case which established the but-for test for Title VII cases. She noted that New York’s Federal court’s had used the motivating factor test for FMLA cases before Nassar and that the appellate court had not ruled on the issue after Nassar.  Judge Donnelly also reviewed at least seven other District Court cases from across the country which came to inconsistent results; some using the motivating factor test and some using the but-for test.

Ultimately, Judge Donnelly held that the but-for test was the appropriate standard for the FMLA retaliation claim.  She further instructed the parties that their proposed jury instructions should reflect the but-for standard.

Judge Donnelly’s decision reflects a trend we are likely to see across the District Courts. In light of the Supreme Court’s Nassar decision, Courts are likely to continue to adopt the but-for standard for retaliation provisions for workplace anti-discrimination statutes.  These are troubling developments for employees, but New York’s appellate court has given employees some relief.  After Nassar, the Second Circuit held that but-for does not mean that employees must prove that retaliation must be the only reason for an adverse employment action.  Rather, the employee must show that the action would not have been taken in the absence of the retaliatory motivation.

If you have a question about the FMLA, retaliation, or discrimination, contact the employment lawyers at Famighetti & Weinick, PLLC at 631-352-0050 or on the web at


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