Section 34 Methods of Proof

• Library: Employment Discrimination 2008

The Supreme Court has held that the FMLA is an antidiscrimination statute. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 728–29 (2003) (FMLA aims to protect the right to be free from gender-based discrimination in the workplace and such a statutory scheme is subject to heightened scrutiny). The courts have looked to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq., to provide guidance for the interpretation of FMLA terms and concepts such as “hours of service,” “eligibility,” and “employer.” FMLA claims fall into two categories:

1. Interference/substantive violations, 29 U.S.C. § 2615(a)(1)

2. Retaliation, 29 U.S.C. § 2615(a)(2)

The Eighth Circuit has produced Model Civil Jury Instructions for the District Courts of the Eighth Circuit §§ 5.80–5.87 (2007), available at:

www.juryinstructions.ca8.uscourts.gov/civilman07%20expanded.pdf

The court has recognized two different standards for liability depending on whether the FMLA violation...