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.
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
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.