Judge Acker Slightly Softens His Stance on “But For” Causation


Leave of Absence

About a month ago, I discussed a string of decisions issued by Senior United States District Court Judge William Acker.  Judge Acker has taken the position that “but for” causation prohibits an employee from making alternative claims of retaliation under Title VII, or the ADA or the ADEA. In short, Judge Acker is making employees limit their retaliation claims to only one statute. Here is a link to my previous comment:Judge Acker Comment.

In a recent decision, Judge Acker slightly softened his stance on “but for” causation. See Kirkland v. Southern Company Svcs, No. 2:15-cv-1500-WMA (N.D. Ala. March 8, 2016). In Kirkland, Judge Acker dismissed an ADA retaliation claim based upon “but for” causation. Nevertheless, Judge Acker declined to dismiss an FMLA retaliation claim. Rather than issuing a definitive decision, Judge Acker found that the issue of “but for” causation in FMLA retaliation claims “is still a toss-up in the Eleventh Circuit.” Judge Acker made clear that he thinks “but for” causation should apply to FMLA retaliation claims, but he would refrain from dismissing such claims until the issue is definitively resolved by the Eleventh Circuit.



I frequently receive telephone calls from clients asking if they are required to create a light duty position for an employee who is injured on the job.  The well-reasoned response to that question is:  “It depends on your definition of ‘create.'”

While the question seems simple, this is an extremely complex area of the law that involves the intersection of the Alabama Workers’ Compensation Act, the Americans with Disabilities Act and the Family and Medical Leave Act.  Alabama law is clear:  the Alabama Workers’ Compensation Act does not require an employer to create a light-duty position for an employee injured on-the-job.  Bleier v. Wellington Sears Co., 757 So.2d 1163, 1172 (Ala. 2000).

But, Alabama law is not the final authority for injured employees, because the Americans with Disabilities Act potentially applies.  If an employee is a “qualified individual with a disability” (a topic which could occupy several pages of discussion) an employer may be required to supply the employee with a reasonable accommodation.  Here’s where the confusion can occur.  An employer is not required to create a light duty position.  Nevertheless, if a light duty position is available, the employer may be required to transfer the employee to that position as a reasonable accommodation.  Moreover, if the employer has previously created positions for injured employees, there may be a requirement to create a position again.

In addition to the ADA, the Family and Medical Leave Act adds to the complexity of this question.  While the FMLA does not impose any accommodation requirements on employers, it does provide protection for employees suffering from a “serious health condition.”  Employees on FMLA leave are entitled to reinstatement after exhaustion of their leave.  The Eleventh Circuit Court of Appeals (which reviews FMLA cases in Alabama) has imposed a heavy burden on employers who fail to return employees to work.  Even if you don’t have to create a light duty position for the employee, you may have an obligation to allow the employee to try to return to work, or give them additional time to return.

Every case is different.  When making employment decisions about injured employees, talk to your attorney before taking final action.