Litigating the FMLA in the Shadow of Title VII

Abstract

The history of Title VII of the Civil Rights Act of 1964 is a history of frameworks.1 In an almost predictable pattern, the Supreme Court has recognized a category of employment discrimination, and then, either in the same case, or sometime thereafter, created a multi-part test for evaluating it.2 Congress enacted the Family and Medical Leave Act (FMLA) in 1993, almost 30 years after it enacted Title VII of the Civil Rights Act.3 This Essay argues that the FMLA is litigated within the shadow of Title VII, as courts routinely apply complex frameworks developed in the Title VII context to FMLA cases. This Essay explores how courts needlessly apply the three-part burden-shifting test from McDonnell Douglas Corp. v. Green, developed in Title VII cases, to FMLA claims. Using the lens of McDonnell Douglas, this Essay demonstrates how courts have drawn the FMLA into the same framework morass that currently exists for Title VII discrimination claims. This phalanx of frameworks distracts courts away from the substantive core of the FMLA, and into endless arguments about the substantive and procedural oddities of the frameworks. In turn, the replication of the discrimination frameworks in the FMLA increases their longevity and reach, making it even more difficult to diminish the frameworks’ grip over discrimination discourse. This Essay proceeds in three sections. Section I discusses the McDonnell Douglas framework and its unique procedural and substantive features. Section II describes how the courts imported McDonnell Douglas into the FMLA with little regard for the differences between Title VII and the FMLA. Section III demonstrates