When an individual suffers an adverse employment action, and as a result files a claim under the FMLA, the courts have failed to establish a clear standard for determining whether the discrimination provision or the interference provision is implicated. Inconsistencies in the application of these two FMLA provisions exist between district and circuit courts, within individual circuits, and among all of the circuit courts. Depending on which provision the court chooses to invoke, a different standard of analysis is applied. A court invoking the discrimination provision applies a three-step burden-shifting framework, whereas, a court invoking the interference provision uses a preponderance of the evidence standard. Because under the discrimination provision the plaintiff must prove employer intent, this higher burden may cause a different outcome than if the court had invoked the interference provision. This Note argues that in order to promote judicial uniformity, the courts should be consistent in determining the appropriate provision and standard of analysis when confronted with similar FMLA claims. This Note further argues that the interference provision is the appropriate and preferable provision to govern such FMLA claims because it requires a lower burden of proof and grants broader protection to plaintiffs.
Stacy A. Manning,
Application of the Interference and Discrimination Provisions of the FMLA Pursuant to Employment Termination Claims,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss2/16