The Family and Medical Leave Act (FMLA) contains an anti-discrimination provision that prohibits employers from discriminating against employees “for opposing any practice made unlawful” under the FMLA. However, the text of the FMLA does not contain an express provision that prohibits retaliation against an employee simply for requesting or taking FMLA leave, and aggressive employers have tried to exploit this statutory gap by firing employees for requesting FMLA leave and then arguing that such retaliation is not prohibited under the FMLA.
This attempt was recently rejected by the Sixth Circuit Court of Appeals in Bryant v. Dollar General Corp.Although the Sixth Circuit does not have direct authority over the federal courts of Georgia, as the FMLA is a relatively new law and many of its details are still being fleshed out by the courts, it is important for Georgia employees to stay current with FMLA decisions in the other federal courts.
In Bryant, a female employee with diabetes filled out FMLA paperwork requesting a brief leave of absence. However, shortly thereafter, the employer launched disciplinary proceedings against her arising out of an alleged altercation that occurred about a month before the employee requested FMLA leave. The employee then took about a week of FMLA leave and was fired a few weeks later.
In the employee’s subsequent FMLA retaliation lawsuit, the employer argued that neither the text of the FMLA nor its regulations explicitly prohibit retaliation. According to the employer, the statutory language only prohibits discrimination against employees for opposing any practice that is unlawful under the FMLA, and the regulations only prohibit discrimination against employees who have used FMLA leave. The employer thus contended that there is no prohibition against FMLA retaliation.
The lower court rejected the employer’s argument and entered a judgment in favor of the employee for more than $146,000. In response, the employer appealed, arguing that the law does not recognize FMLA retaliation claims. The Sixth Circuit, however, rejected the employer’s appeal and affirmed the judgment in favor of the employee. Relying on the clear weight of authority from the other circuit courts of appeal, and the FMLA’s structure and legislative history, the court concluded that the “FMLA itself prohibits employers from taking adverse employment actions against employees based on the employee’s exercise of FMLA leave.” The court reasoned that to rule otherwise would render the FMLA a nullity, as employers could discharge employees for asserting their rights under the FMLA with impunity, thus in essence denying employees their statutory right to 12 weeks of FMLA leave.
Although the Eleventh Circuit (the federal appeals court that has direct authority over the federal district courts of Georgia, Alabama and Florida) has previously ruled that the FMLA prohibits retaliation, it is certainly a welcome sign to see another appeals court take this reasonable interpretive approach to the statute. Nevertheless, employees should keep in mind that the FMLA does not guaranty the employment of employees on FMLA leave; employers may take adverse actions against employees on FMLA leave if they can show that they have independent grounds for such adverse actions-which is the basic rule in all retaliation cases.