A panel of the Sixth Circuit Court of Appeals (the federal circuit that includes Michigan, Ohio, Kentucky, and Tennessee) recently gave employers the heads up that The Times They are a Changin,‘ or at least should be, when it comes to the standard for successfully making a claim under the Americans with Disabilities Act (ADA).

Specifically, in a recent case, plaintiff Susan Lewis lost her ADA claim at the trial level. On appeal, she argued that the trial court should have instructed the jury that her disability need only be a “motivating factor” for her termination rather than the “sole” factor for the adverse employment action.   

In support of her position, the ADA plainly prohibits discrimination “on the basis of” disability. 42 USC §12112(a). But the Sixth Circuit has previously determined this provision to mean that a plaintiff must prove that the plaintiff’s disability was the “sole reason” for the adverse employment action under a 1996 court opinion (Monette v. Elec. Data Sys. Corp). And based on Sixth Circuit procedure, this prior opinion must be followed, unless a certain rehearing (referred to as an “en banc” hearing) takes place.   

The Court of Appeals panel in Lewis, however,  questioned in multiple instances whether the “sole reason” standard should continue to be “good law” because that standard conflicts with the plain language of the statute. Further, eight other circuits (there are 13 circuits in total) apply a “motivating factor” test rather than the “sole reason” standard. Under the “motivating factor” standard a plaintiff is only required to prove his or her disability was a motivating factor of the adverse employment action rather than the “sole reason” in order to make a successful ADA claim.

A concurring opinion by Judge Griffin summed up the Court’s obvious disdain of the “sole reason” standard and signaled what should happen next:   

I write separately because our precedent on this issue of exceptional importance is misguided and contrary to the overwhelming authority of our sister circuits. Accordingly, the question appears appropriate for rehearing en banc. 

An en banc hearing would give the Sixth Circuit Court of Appeals the procedural opportunity to overrule the “sole reason” standard and follow the “super majority” of the remaining federal circuits.

The Take Away

Similar to Mr. Dylan’s famous observation that “You don’t need a weatherman to know which way the wind blows” (Subterranean Homesick Blues, on Bringing It All Back Home), you don’t need to be a legal scholar to know that the Sixth Circuit’s current “sole reason” standard will likely be overruled as soon as the procedural opportunity is presented. While employers may not like this change, Judge Griffin is absolutely correct in noting that the “sole reason” standard is contrary to the plain language of the statute and as further evidenced by the overwhelming majority of federal circuits to reject it in favor of the “motivating factor” standard. Under the “motivating factor” standard, ADA discrimination need not be the sole reason for the adverse employment decision. It must, however, actually play a role in the employer’s decision making process and have a determinative influence on the outcome.