Arlene Fry v. Rand Construction Corporation

I. In Burrage v. United States, 571 U.S. 204 (2014), this Court explained that a “but-for” cause is merely one cause, perhaps among several, which is “the straw that broke the camel’s back” and, in June, this Court reiterated in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), that “but-for” cause is not sole cause and may be one of many causes for an adverse employment action. Here, the question presented to the Court is whether the lower court erred in adopting what is, in essence, a “sole cause” standard, in direct conflict with the Court’s holdings in Burrage and Bostock. II. Although the Fourth Circuit purported to apply a “but-for” causation standard to Petitioner’s FMLA claim, there is clear disarray among circuit courts regarding the correct standard. Because of confusion within the circuits, deepened by the Department of Labor’s adoption of a “negative factor” regulation, the question presented is whether the correct causation standard is but-for, motivating factor, or negative factor.