In Search of a Standard: Unraveling the Emerging Circuit Split over the Proper Causation Standard for Retaliation Claims under the FMLA

by Megan VanGilder, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Disagreement is a part of life. From sibling rivalries to disputes among colleagues, strong-willed individuals often butt heads, leaving it up to someone else to settle the dispute. In the case of the federal judiciary, these disagreements take the form of circuit splits. A circuit split arises when two or more circuits within the U.S. Courts of Appeals come to different conclusions on the same legal issue.¹ This leads to alternative applications of federal law across the country, with similarly situated parties receiving different treatment depending on where they are located.² Often, the Supreme Court takes an interest in these cases and will grant certiorari to resolve the split.³ Although the Supreme Court is not required to resolve these cases, it holds the power to set a uniform standard for the entire country and usually takes an interest in these issues.

The Eleventh Circuit’s December 2023 decision in Lapham v. Walgreen Co. deepened a growing circuit split over the proper causation standard for retaliation claims under the Family and Medical Leave Act (“FMLA” or “the Act”).⁴ In siding with the defendant-employer, the Eleventh Circuit joined the Fourth Circuit in adopting the but-for causation standard—as opposed to the motivating factor standard that the Second and Third Circuits follow.⁵ As this disagreement among the courts continues to grow, plaintiffs now face drastically different burdens of proof depending on their jurisdiction.

Section II briefly describes the FMLA and retaliation claims, explains and compares the competing causation standards, and breaks down the disagreement between Federal Circuit Courts over which standard should apply. Section III argues that the Supreme Court should take up an FMLA retaliation case to resolve the split among the circuit courts and to provide a clear standard for plaintiffs across the country. Finally, Section IV offers a brief conclusion.

1. Background

A. The Family and Medical Leave Act and Retaliation

The FMLA is a federal statute that allows eligible employees to take up to twelve weeks of unpaid leave for a variety of family-related reasons.⁶ Passed in 1993, the FMLA was intended to support families by granting protections to employees needing to take time off for either personal medical reasons or the medical needs of their close family members.⁷ Since its passage, the FMLA has received widespread support and has been used by employees over 200 million times.⁸

The Act not only allows for job-secured leave, but also includes protections for employees who believe they were fired in retaliation for requesting or taking otherwise authorized leave.⁹ Section 2615(a) of the Act prohibits employers from interfering with employees’ rights or retaliating against employees for asserting their rights under the FMLA.¹⁰ Broadly speaking, this means that employers may not interfere with, restrain, or deny employees’ exercise of rights, or retaliate against employees for challenging unlawful actions.¹¹ In sustaining a retaliation claim, plaintiff-employees must demonstrate that their request for or exercise of FMLA leave was the cause of their termination or other adverse action taken against them by their employer.¹² While all U.S. Courts of Appeals agree that Section 2615(a) governs retaliation claims, they tend to disagree over whether these claims arise under Section 2615(a)(1) or Section 2615(a)(2).¹³ This distinction is important, as it impacts which causation standard will apply when plaintiffs attempt to prove their claims—the crux of the ongoing circuit split.¹⁴

B. The Circuit Courts are Split on Which Standard Applies

As mentioned above, two subsections of the FMLA provide a reasonable basis for retaliation claims: Section 2615(a)(1) and Section 2615(a)(2).¹⁵ Section 2615(a)(1) states that employers may not “interfere with, restrain, or deny the exercise of or the attempt to exercise,” FMLA rights.¹⁶ Alternatively, Section 2615(a)(2) prohibits employers from firing or discriminating against employees who oppose, “any practice made unlawful by this subchapter.”¹⁷ When applied, the two subsections implicate different causation standards—under Section 2615(a)(1) courts apply the motivating factor causation standard, whereas under Section 2615(a)(2) courts find support for the but-for standard.¹⁸ These differing approaches lead to plaintiffs facing inconsistent burdens of proof—which can be outcome-determinative depending on their jurisdiction.¹⁹

i. Section 2615(a)(1) and the Motivating Factor Standard

Circuits that adopt Section 2615(a)(1) point to both the plain language of the provision and the Department of Labor’s (“DOL”) regulation on retaliation claims.²⁰ The Second Circuit panel in Woods v. START Treatment & Recovery Ctrs., Inc. noted that Section 2615(a)(2) prohibits adverse employment actions against employees for opposing unlawful practices, and argued that asserting FMLA rights is distinct from opposing an unlawful practice.²¹ Rather, the panel asserted adverse employment actions that result from a lawful exercise of FMLA rights fit more squarely within the language of Section 2615(a)(1).²² Further, the DOL’s regulation concludes that “Section 2615(a)(1) provides a clearer statutory basis for the FMLA’s prohibition of discrimination and retaliation for exercising FMLA rights.”²³

After determining the statutory basis for the retaliation claim, the Woods panel analyzed which causation standard Section 2615(a)(1) implies.²⁴ In making this determination, the court went through the Chevron analysis to determine whether or not to defer to the DOL’s guidance that motivating factor is the proper standard.²⁵ The now-overturned Chevron Doctrine required that courts defer to agency interpretations of ambiguous statutes, as long as those interpretations are not “arbitrary, capricious, or manifestly contrary to the statute.”²⁶

Under step one of the analysis, the panel found that the statute is silent on the question of causation, stating that it “lacks any indicia of Congress’s intent to create ‘but-for’ causation.”²⁷ Moving on to step two, the court found that the DOL’s interpretation was reasonable both as a matter of policy and under statutory construction principles—ultimately deferring to its adoption of the negative factor causation standard, also known as the motivating factor standard.²⁸

The Third Circuit followed a similar analysis in Egan v. Delaware River Port Authority where it acknowledged the arguments in favor of a but-for standard but ultimately deferred to the DOL to adopt the motivating factor standard.²⁹ Plaintiffs within the Second and Third Circuits face a much more favorable standard than those in the Eleventh or Fourth.³⁰ Under the motivating factor standard plaintiff-employees need only establish that their termination was at least partially motivated by discriminatory or retaliatory intent.³¹ This differs from the more rigorous but-for standard which creates a higher burden for plaintiffs when proving their claims.

ii. Section 2615(a)(2) and the But-For Standard

Unlike the Second and Third Circuits, the Eleventh and Fourth Circuits find the proper statutory basis for retaliation claims in Section 2615(a)(2).³² These circuits interpret the provision to protect employees from discrimination or retaliation not only when they oppose unlawful practices, but also when they exercise their FMLA rights.³³ Further, these circuits have not found DOL’s guidance binding, but instead find the Supreme Court’s interpretation of Title VII of the Civil Rights Act of 1964’s retaliation provision highly persuasive as applied to the FMLA’s language.³⁴ Because the language of Title VII’s retaliation provision is so similar to Section 2615(a)(2), these circuits see it as holding analogous meaning, despite what the other circuits have found in the plain language of 2615(a)(1).³⁵

The Eleventh Circuit panel in Lapham relied on the Supreme Court’s opinion in University of Texas Southwestern Medical Center v. Nassar as its basis for applying Section 2615(a)(2).³⁶ Nassar was not an FMLA retaliation case, rather it dealt with a retaliation claim under Title VII, which contains a similar provision to the FMLA.³⁷ In Nassar, the Court found that the statute’s use of the word “because” meant that but-for causation was the proper standard.³⁸ Applying this same reasoning to retaliation under the FMLA, the Eleventh Circuit found that the use of the word “for” in Section 2615(a)(2) is equivalent to the use of “because” and relied on the Nassar opinion to support its finding that this kind of language implies a but-for causation standard under the FMLA as well.³⁹

The Lapham panel briefly conducted a Chevron analysis but did not go past step one as it found that the statute was not silent on the matter of causation.⁴⁰ The court stated that by using “because of” language in the statute, Congress “chose to embrace the default but-for causation standard.”⁴¹Because the analysis failed on step one, the panel held that it was not required to defer to the DOL’s interpretation and guidance—leading to its ultimate finding that but-for is the proper causation standard.⁴²

The Fourth Circuit also adopted the but-for standard, but its decisions do not mirror the Eleventh Circuit’s analysis.⁴³ For example, in Fry v. Rand Construction Corporation, the Fourth Circuit panel highlighted the court’s previous reliance on Section 2615(a)(2) and acceptance of the but-for standard.⁴⁴ However, the panel also noted that the DOL’s guidance suggests the proper statutory basis for retaliation claims is Section 2615(a)(1), which would lend support to the motivating factor standard.⁴⁵ Ultimately, the Fourth Circuit did not go through the Chevron analysis because of the plaintiff’s reliance on the McDonnell Douglas framework,⁴⁶ under which the plaintiff was still required to prove but-for causation to support her claims.⁴⁷ Despite the panel’s mention of the DOL’s guidance, the ultimate holding in Fry left but-for causation intact as the standard in the Fourth Circuit.⁴⁸

In contrast to the flexibility of the motivating factor standard, the but-for standard requires plaintiffs to establish that their FMLA-protected activity was the primary reason for their termination—that, but for their request for leave, they would not have been fired.⁴⁹ This is a high burden for plaintiffs to meet, as they are tasked with proving that the alleged retaliation was the determining factor for their employer’s action.⁵⁰ The differing interpretations of federal law, along with the application of inconsistent causation standards creates a situation in which plaintiffs will receive different treatment from circuit to circuit.⁵¹

III. Discussion

Although determining which of the two causation standards to apply may appear straightforward, the underlying legal analysis presents a complex set of issues. Determining the proper standard requires that courts first decide which subsection of the FMLA applies.⁵² Making this decision will involve careful statutory interpretation—particularly now that the Supreme Court has ruled that courts are not required to defer to an agency’s reasonable interpretation of an ambiguous statute, as was formerly prescribed in Chevron.⁵³ It is only after going through this analysis that a court may support its application of either causation standard. Given the layers to this issue and the inconsistency within the Courts of Appeals, the Supreme Court should resolve this split and determine which subsection of the FMLA governs retaliation claims to clarify the proper causation standard.

If inconsistent outcomes in FMLA retaliation cases continue, both employers and employees will struggle to know how best to litigate their claims. Further, in those circuits that have not clearly adopted a standard, parties will be uncertain of which causation standard they should abide by when presenting their claims and defenses. While support exists for either causation standard, without any definitive guidance from the Supreme Court, similarly situated litigants will continue to face inconsistent rulings from the lower federal courts.⁵⁴

Based on the analysis and arguments made by the various circuit courts, Section 2615(a)(1) appears to have stronger support as the proper statutory basis for retaliation claims.⁵⁵ Looking at the plain language of both provisions, Section 2615(a)(1) protects the exercise of FMLA rights, whereas Section 2615(a)(2) protects employees who oppose unlawful practices.⁵⁶ This distinction alone seems to lend support to 2615(a)(1), as the employees in these cases are claiming that they were retaliated against for taking or requesting FMLA leave—for exercising their rights under the Act.⁵⁷ While the Title VII provision at issue in Nassar closely resembles the language of Section 2615(a)(2), both provisions concern employees who oppose unlawful practices, rather than employees who exercise their protected rights.⁵⁸ If Section 2615(a)(1) did not exist, this comparison would make more sense, however, the existence of both subsections indicates that they serve related but distinct purposes.⁵⁹

Assuming Section 2615(a)(1) is the proper statutory provision, the next question is whether or not it implies the motivating factor standard. The courts that adopt Section 2615(a)(1) primarily find support for the motivating factor standard based on DOL’s guidance and defer to its interpretation under the Chevron Doctrine.⁶⁰ However, across all Courts of Appeals, panels differ in their findings under the first step of the Chevron analysis—whether the statute is silent on the issue—but this is because they are analyzing two different provisions.⁶¹ The Supreme Court’s guidance in Nassar supports the argument that Section 2615(a)(2)’s use of the word “for” may be analogized to the use of “because” in Title VII as an indication of Congress’s intent to enforce the but-for standard.⁶² However, that provision’s language does not appear to give rise to these types of claims. Rather, Section 2601(a)(1)’s language, which better encompasses these retaliation claims, does appear ambiguous and contains no language supporting either standard.⁶³ However, determining whether to apply Chevron is now moot, and the ambiguity of Section 2601(a)(1) no longer requires deference to the DOL’s interpretation.⁶⁴

While the Chevron deference is now impermissible, it is still possible that the Supreme Court may find the DOL’s interpretation persuasive based purely on statutory interpretation and policy considerations. Regardless of any requirement to follow the DOL’s guidance, the Court will still have to determine which standard the statute implies; and it is possible that it will find for motivating factor over but-for causation.⁶⁵ As the panel in Woods pointed out, the DOL’s interpretation is persuasive on both statutory interpretation and policy grounds—considerations that may be enough for the Court in the absence of agency deference.⁶⁶ Even with this uncertainty in terms of the ultimate causation standard, it does seem as though Section 2615(a)(1) provides a better basis for retaliation claims, and the Court would be remiss not to consider the lower courts’ endorsement of the DOL’s support for the motivating factor standard.⁶⁷

IV. Conclusion

Resolving this circuit split will not be a simple matter. The Supreme Court will have to not only determine the proper statutory basis for retaliation claims, but it will also have to go through a statutory interpretation analysis to determine the accompanying causation standard. Despite the Eleventh Circuit’s support for Section 2615(a)(2) and the but-for standard, an analysis of the other circuits’ decisions provides persuasive arguments for adopting Section 2615(a)(1) and the motivating factor standard.⁶⁸Regardless of how the Court may ultimately rule on this matter, it is imperative that it offer some clarity —even more so since overturning Chevron has only increased uncertainty.⁶⁹ While the Court must wait for parties to appeal from an appellate FMLA retaliation decision, given the opportunity, it should grant certiorari and resolve this circuit split.

Cover Photo by Katrin Bolovtsova on Pexels.

Megan VanGilder

Megan is a 3L at the University of Cincinnati College of Law. Originally from Louisville, Kentucky, she is a graduate of the University of Kentucky with a Bachelor's degree in Political Science and Integrated Strategic Communication. At the College of Law, she has served as a policy fellow with the Ohio Innocence Project and is currently a Notes and Comments Editor for the Law Review. She is also a member of the Law Review’s Diversity, Equity, and Inclusion committee.

References

1
Legal Information Institute, Circuit Split, Cornell L. Sch. (Jul. 2022), https://www.law.cornell.edu/wex/circuit_split.
2
Id.
3
Because the Supreme Court has discretion over the cases it hears, parties who wish to appeal their case to the Court must file a writ of certiorari requesting that the Court take up their case. If the Court agrees to hear the case it will grant the writ of certiorari. Legal Information Institute, Certiorari, Cornell L. Sch. (Jul. 2022), https://www.law.cornell.edu/wex/certiorari; Legal Information Institute, supra note 1.
4
Evandro Gigante, Laura Fant & Mallory Knudsen, Eleventh Circuit Deepens Split Over Causation Standard for FMLA Retaliation Claims, Proskauer (Dec. 26, 2023), https://www.lawandtheworkplace.com/2023/12/eleventh-circuit-deepens-circuit-split-over-causation-standard-for-fmla-retaliation-claims/; see also Lapham v. Walgreen Co., 88 F.4th 879 (11th Cir. 2023).
5
Gigante, Fant & Knudsen, supra note 4; see also Lapham, 88 F.4th 879.
6
Family and Medical Leave Act, U.S. Dep’t. of Labor, https://www.dol.gov/agencies/whd/fmla; see also Fry v. Rand Constr. Corp., 964 F.3d 239, 244 (4th Cir. 2020). A few of these covered reasons include: the birth of a child, caring for a spouse, child, or parent with a serious health condition, or the employee’s own serious health condition that renders them unable to perform their job.
7
The Family and Medical Leave Act of 1993, U.S. Dep’t of Labor, https://www.dol.gov/agencies/whd/laws-and-regulations/laws/fmla#SEC_2_FINDINGS_AND_PURPOSES; see also 29 U.S.C.S. § 2601(b).
8
History of the FMLA, Nat’l P’ship for Women and Fam., https://nationalpartnership.org/economic-justice/family-medical-leave-act/history-of-the-fmla/.
9
29 U.S.C. § 2615.
10
See 29 U.S.C. § 2615(a).
11
29 U.S.C. §2615(a); see also FMLA Frequently Asked Questions, U.S. Dep’t of Labor, https://www.dol.gov/agencies/whd/fmla/faq#19.
12
See Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166-167 (2nd Cir. 2017); see also 29 U.S.C. § 2615 (a).
13
See Woods, 864 F.3d at 166; see also Fry v. Rand Constr. Corp., 964 F.3d 239, 244 (4th Cir. 2020).
14
See generally Woods, 864 F.3d; see also Fry, 964 F.3d at 244; see also Lapham v. Walgreen Co., 88 F.4th 879 (11th Cir. 2023); see also Gigante, Fant & Knudsen, supra note 4.
15
Woods, 864 F.3d at 166.
16
29 U.S.C. § 2615(a)(1); see also Woods, 864 F.3d at 166.
17
29 U.S.C. §2615(a)(2); see also Woods, 864 F.3d at 166.
18
See Nathaniel M. Glasser, Second Circuit Adopts “Motivating Factor” Causation Standard for FMLA Retaliation Claims, The Nat’l L. Rev. (Jul. 24, 2017), https://www.natlawreview.com/article/second-circuit-adopts-motivating-factor-causation-standard-fmla-retaliation-claims; see also Woods 864 F.3d 158; see also Egan v. Del. River Port Auth., 851 F.3d 239, 263 (3rd Cir. 2017); see also Lapham, 88 F.4th 879, see also Fry, 964 F.3d 239; see also Woods, 864 F.3d at 166-67.
19
See Woods, 864 F.3d at 168; see also Lapham, 88 F.4th at 893.
20
See Woods, 864 F.3d at 166-68; see also Egan, 851 F.3d at 263.
21
Woods, 864 F.3d at 167.
22
Id.
23
Id.; see also Code of Federal Regulations, Nat’l Archives (Apr. 2, 2024), https://www.ecfr.gov/current/title-29/subtitle-B/chapter-V/subchapter-C/part-825/subpart-B/section-825.220.
24
Woods, 864 F.3d at 167-68.
25
Id. The Chevron analysis involved a two-part test for determining whether or not a court must defer to an agency’s interpretation of a vague statute. As laid out in Chevron v. Natural Resource Defense Council, this analysis required courts to first determine whether the statute is silent or ambiguous on the question at issue; and if it is, to then consider whether the agency’s interpretation is reasonable under both statutory construction principles and as a matter of policy. Woods, 864 F.3d at 168 (Citing Chevron U.S.A. Inc., v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984)). However, this doctrine was overturned by the Supreme Court in June 2024. See Loper Bright Enterprises v. Raimondo, 144 S.Ct 2244 (2024).
26
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843-44 (1984).
27
Woods, 864 F.3d at 168.
28
Id. The DOL’s guidance provides that, “employers cannot use the taking of FMLA leave as a negative factor in employment actions.” Woods, 864 F.3d at 168 (Quoting 29 C.F.R. 825.220(c)).
29
See Egan v. Del. River Port Auth., 851 F.3d 263, 272-73 (3rd Cir. 2017).
30
Glasser, supra note 18.
31
Id.
32
See Lapham v. Walgreen Co., 88 F.4th 879 (11th Cir. 2023); see also Fry v. Rand Constr. Corp., 964 F.3d 239, 244 (4th Cir. 2020).
33
See Fry, 964 F.3d at 245.
34
Title VII of the Civil Rights Act of 1964 is a federal statute that protects employees from discrimination on the basis of race, color, religion, sex, and national origin. U.S. Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964, EEOC.
35
See Lapham, 88 F.4th at 890-91; see also Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 166-67 (2nd Cir. 2017). Title VII’s retaliation claim states, “it shall be an unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed a practice made unlawful by this subchapter.” Lapham, 88 F.4th at 891 (Quoting 42 U.S.C. § 20003-3(a)).
36
Gigante, Fant & Knudsen, supra note 4; see also Lapham, 88 F.4th at 890-94. In Nassar the Supreme Court was tasked with determining the proper causation standard for retaliation claims under 42 U.S.C. § 2003-3(a). Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013).
37
See generally Nassar, 570 U.S. 338.
38
Gigante, Fant & Knudsen, supra note 4; see also Nassar, 570 U.S. at 354-60.
39
Lapham, 88 F.4th at 890-91.
40
Id. at 893.
41
Gigante, Fant & Knudsen, supra note 4; see also Lapham, 88 F.4th at 893.
42
Lapham, 88 F.4th at 893.
43
See generally Fry v. Rand Constr. Corp., 964 F.3d 239 (4th Cir. 2020) (Recognizing support for applying § 2615(a)(1), but ultimately avoiding a determination of which subsection applies).
44
Id. at 245.
45
Id. at 245-46.
46
The McDonnell Douglas framework is a burden-shifting framework that is used to determine whether a plaintiff’s claim of disparate treatment should survive a defendant’s motion for summary judgement. The framework applies when plaintiffs cannot provide any direct evidence of discrimination. Practical Law Glossary, McDonnell Douglas Burden-Shifting, Westlaw, https://1.next.westlaw.com/Document/Id4cf1911f3ad11e28578f7ccc38dcbee/View/FullText.html?transitionType=Default&contextData=(sc.Default)&isplcus=true&firstPage=true&bhcp=1; see also McDonnel Douglas Corp. v. Green, 411 U.S. 792 (1973).
47
Fry, 964 F.3d at 246.
48
See generally Id. (stating that the court would not rule on the issue of causation).
49
See Katie Farr & Joshua Rodine, Eleventh Circuit Holds FMLA Retaliation Requires “But-for” Showing, Jdsupra (Jan. 11, 2024), https://www.jdsupra.com/legalnews/eleventh-circuit-holds-fmla-retaliation-1207493/; see also Gigante, Fant & Knudsen, supra note 4; see generally Lapham, 88 F.4th 879.
50
Glasser, supra note 18.
51
See Legal Information Institute, supra note 1.
52
See Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166; see also Egan v. Del. River Port Auth., 851 F.3d 239, 270 (3rd Cir. 2017); See generally Lapham v. Walgreen Co., 88 F.4th 879 (11th Cir. 2023).
53
See Woods, 864 F.3d at 166-68; see also Relentless, Inc. v. Department of Commerce, Oyez, https://www.oyez.org/cases/2023/22-1219 (last visited Apr. 9, 2024). The Court overturned Chevron in a 6-3 opinion released on June 28, 2024. Writing for the majority, Chief Justice Roberts deemed the doctrine “misguided,” and held that the Administrative Procedure Act requires that courts apply their own judgement when determining legal issues. Loper Bright Enterprises v. Raimondo, 144 S.Ct 2244 (2024).
54
See Woods, 864 F.3d at 166-68; see also Lapham, 88 F.4th at; see also Legal Information Institute, supra note 1.
55
See Woods, 864 F.3d at 166-68; see also Egan, 851 F.3d at 271-72
56
See Woods, 864 F.3d at 167; see also 29 U.S.C. §§ 2615(a)(1) – (a)(2).
57
Woods, 864 F.3d at 167.
58
See Lapham, 88 F.4th at 891-93; see also Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013); see also 42 U.S.C. § 20003-3(a); see also 29 U.S.C. § 2615(a)(2).
59
See generally Woods, 864 F.3d at 166-69 (Discussing the differences between § 2615(a)(1) and § 2615(a)(2)).
60
Woods, 864 F.3d at 168-69; Egan, 851 F.3d at 272-74.
61
See Woods, 864 F.3d at 168; see also Lapham, 88 F.4th at 893.
62
See Lapham, 88 F.4th at 893; see also Gigante, Fant & Knudsen, supra note 4; see also Nassar, 570 U.S. at 360.
63
See 29 U.S.C. § 2615(a)(1); see also Woods, 864 F.3d at 168; see also Egan, 851 F.3d at 273.
64
See Loper Bright Enterprises v. Raimondo, 144 S.Ct 2244 (2024).
65
See Woods, 864 F.3d at 166; see also Egan, 851 F.3d at 272.
66
See Woods, 864 F.3d at 168-69.
67
See generally id. at 166-69 (Applying § 2615(a)(1) and adopting the DOL’s interpretation); see also Egan, 851 F.3d at 273-74 (Applying the Chevron analysis to § 2615(a)(1) and adopting the motivating factor standard).
68
See Lapham, 88 F.4th at 892-94; see also Woods, 864 F.3d at 166-69; see also Egan, 851 F.3d at 272-74.
69
Loper Bright Enterprises v. Raimondo, 144 S.Ct 2244 (2024).