It finally happened; This blog noted back in August 2011 that the Sixth Circuit would likely make significant changes in favor of employees bringing claims under the Americans with Disabilities Act (ADA).
On May 25, 2012, the Sixth Circuit Court of Appeals made it official in holding that plaintiff employees bringing claims under the ADA are no longer required to show that the plaintiff’s disability was the “sole reason” for an adverse employment action. Instead, a plaintiff must now show that the disability was a “but-for’ cause of the employer’s adverse decision.”
Specifically, in Lewis v Humboldt Acquisition Corp. (PDF), Susan Lewis lost her ADA claim at the trial level. She appealed this decision and 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.
But this “motivating factor” standard was not the law in the Sixth Circuit. Instead, for the past 17 years a plaintiff bringing a claim under the ADA was required to prove that the plaintiff’s disability was the “sole reason” for the adverse employment action.
In overturning the previous “sole reason” standard, the Sixth Circuit Court panel noted:
The longer we have stood by this standard, the more out of touch it has become with the standards used by our sister circuits. At this point, no other circuit imports the “solely” test into the ADA … Our interpretation of the ADA not only is out of sync with the other circuits, but it also is wrong.
Accordingly, Lewis was granted a new trial to prove her former employer violated the ADA for firing her because she had a medical condition. That condition made it difficult for her to walk and occasionally required her to use a wheelchair. The employer, however, argued that Lewis was fired for an outburst at work, in which she allegedly yelled, used profanity and criticized her supervisors.
What is the standard that will now apply for bringing an ADA claim?
Employers did not completely lose out after the reversal of the “sole reason” ADA standard. This is because Lewis had actually argued that an ADA plaintiff should only be required to show that the claimant’s disability “was a motivating factor in the adverse employment decision” in order to establish a violation under the ADA.
The Court, however, ultimately rejected this lower standard and, instead ruled that the ADA prohibits discrimination “because of” an employee’s age or disability, meaning that the ADA prohibits discrimination that is a “but-for’ cause of the employer’s adverse decision.”
Seven judges disagreed with the majority’s interpretation in three separate partial dissents. Judge Eric Clay, summarized these sentiments by noting that the majority failed to accomplish the court’s original goal of lining up with the prevailing legal opinion across the country who have accepted the “motivating factor” jury instruction for proving ADA claims.
This distinction is significant for employers, as noted by Judge Clay’s dissenting opinion:
Imagine that a disabled plaintiff seeks remedy under the ADA following the termination of her employment, which she believes was on the basis of her disability. The plaintiff admits evidence that the employer wished to terminate her because the employer believed her disability was troublesome to its business; but the employer admits other evidence that the plaintiff’s work was less than exemplary. Under a motivating-factor standard, the plaintiff could easily satisfy her causation burden by presenting evidence that her disability provided one of the reasons for her termination. However, under the but-for standard, the plaintiff is obligated to prove that without the disability, her allegedly poor performance would not have been enough to motivate her employer to terminate her. In practice, a plaintiff will rarely discover objective evidence of her employer’s state of mind or internal motivations that would satisfy this extremely heavy burden.
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Employing a but-for causation standard for ADA claims imposes a burden upon individuals in seeking to vindicate disability-based discrimination that is greater than the burden intended by Congress.
Take-aways for Employers
Certainly reversing the “sole reason” standard was a blow to employers when it comes to defending against claims under the ADA. But it remains to be seen whether the dissenting judges’ fears will prove the “but for” standard makes it materially more difficult for employees to establish a claim under the ADA.
The best advice for employers, however, was perfectly articulated in Jon Hyman’s blog post; employers “are infinitely better off making reasonable accommodations and avoiding disability discrimination claims …” Can’t argue with that conclusion.