En Banc Sixth Circuit Rejects Prior Causation Standard for ADA and Now Requires Plaintiffs to Prove Employer Acted Because of Disability.

On Friday, the Sixth Circuit issued a rare en banc decision reversing over a decade of precedent requiring ADA plaintiffs to prove that disability discrimination was the sole or only reason for the employer’s adverse action. Lewis v. Humboldt Acquisition Corp. No. 09-6381 (6th Cir. 5/25/12). Instead, the Sixth Circuit now requires ADA plaintiffs to prove that the employer acted because of the plaintiff’s disability. In other words, the employer would not have discriminated or taken adverse action but for the plaintiff’s disability and the plaintiff’s disability no longer need be the employer’s sole or only consideration in order for an ADA plaintiff to prevail. The Court’s majority reached this decision because the statutory language in the ADA, like the ADEA, prohibits employers from discriminating “because of” an employee’s disability. The prior causation standard had been borrowed from the Rehabilitation Act, which the Court found to be inapposite in light of the differences in the statutory texts. “Shared statutory purposes do not invariably lead to shared statutory texts, and in the end it is the text that matters.” The Court also determined that because the ADA statutory language mirrored that of the ADEA, it should follow the causation standard for that statute as recently explained by the Supreme Court in Gross v. FBL Financial Services instead of the more lenient “motivating factor” standard of Title VII as argued by the plaintiff. Although both Title VII and the ADA prohibit employment discrimination, the motivating factor language is never used in the ADA and the Court rejected the plaintiff’s attempts to incorporate it by cross-cross references to Title VII.

At issue was the termination of a registered nurse with a disability who the employer claimed had been fired because “an outburst at work, in which she allegedly yelled, used profanity and criticized her supervisors.” At trial, the plaintiff had requested a jury instruction with the motivating factor theory of causation, but the trial court utilized the “sole” reason jury instruction. The Sixth Circuit rejected both approaches in favor of the “but for” theory of causation based on a comparison of statutory texts and the Supreme Court’s prior Gross opinion. Notably, as of last week, the Sixth Circuit was the only Court of Appeals to still utilize the “sole factor” causation theory in ADA cases and the only other Circuit to have addressed this issue since Gross also concluded that the ADA should be constructed the same as the ADEA. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961–62 (7th Cir. 2010).

Interestingly, all of the judges agreed that the sole factor test should be discarded, but there were three separate concurring opinions because they did not all agree on the “because of” standard.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.