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The Sixth Circuit has finally nixed the sole cause standard for ADA claims but the majority also refused to follow its sister circuits in adopting the motivating factor standard

May 25th, 2012  |  Lorene Park

Reasoning that, unlike the Rehabilitation Act, the text of the ADA never used the word “solely” with respect to its causation standard, and that different words convey different meanings, the Sixth Circuit unanimously reversed course after 17 years of precedent and held that the ADA does not require a plaintiff to show that his or her disability was the “sole” cause of an adverse employment action (Lewis v Humboldt Acquisition Corp, Inc, dba Humboldt Manor Nursing Home, May 25, 2012, en banc). For similar reasons, the majority declined to import the “motivating factor” standard from Title VII into the ADA causation analysis. Instead, it found that the “but-for” causation standard was appropriate, and remanded the underlying case for a new trial. Seven judges dissented in part, reasoning that the “motivating factor” standard should be applied.

Background. In the underlying ADA discrimination case, a registered nurse alleged that her employer trumped up the severity of an outburst as pretext for firing her because she had a medical condition that made it difficult to walk and that occasionally required her to use a wheelchair. When it came time to present her ADA claim to a jury, the employer asked the court to instruct the jury that the employee could prevail only if the decision to fire her was “solely” because of her disability, a term that appears in the Rehabilitation Act but not in the ADA. The employee asked the court to instruct the jury that she could prevail if her disability was a “motivating factor” in the termination, a phrase that appears in Title VII but not in the ADA. Under existing Sixth Circuit authority, the trial court applied the sole-cause standard. Guided by the court’s instructions, a jury found her disability was not the sole factor in her discharge, and ruled in the employer’s favor.

On March 17, 2011, a Sixth Circuit panel affirmed. The panel held that the lower court did not err by applying the sole-cause standard of causation. The panel acknowledged that a supermajority of circuits have adopted the motivating factor test, but remained bound by precedent to the sole cause test absent an intervening Supreme Court opinion, or an en banc appellate court reversed. Now the appellate court, en banc, has reexamined the issue, ultimately reversing and remanding for a new trial.

“Because of” is not “solely” because of. At the time the instant suit was filed, the Rehab Act prohibited discrimination “solely” by reason of disability and Title I of the ADA prohibited employment discrimination “because of” the disability of an individual. As most recently amended, the ADA prohibits discrimination “on the basis of disability.” Examining the history of the ADA, the Sixth Circuit pointed out that “[w]ith the passage of the ADA in 1990, Congress extended many of the Rehabilitation Act’s protections to entities that do not receive federal funding, and borrowed many of the requirements and standards from the earlier law in doing so.” Relying on the similarities between the two acts, courts in the Sixth Circuit have for the past 17 years applied the causation standard of the Rehab Act to ADA cases. In the court’s view, the longer it stood by the standard, the more out of touch it became with sister circuits. Now revisiting the issue, the Sixth Circuit ruled that its prior interpretation of the ADA was both out of sync and wrong.

Over the years both the Rehab Act and the ADA have been amended several times, wrote the court, but the distinction between the causation standards of the two acts has persisted. At no point has the ADA used the “solely” causation standard found in the Rehab Act. In the court’s view, different words convey different meanings and it was left with two laws with two different causation standards. “A law establishing liability against employers who discriminate ‘because of’ an employee’s disability does not require the employee to show that the disability was the ‘sole’ cause of the adverse employment action,” wrote the court. Accordingly, the court held that the sole-cause standard does not apply under the ADA.

Motivating factor standard rejected also. While it rejected the sole-cause standard with respect to ADA cases, that did not end the analysis because the employee asked the court to apply the “motivating factor” causation standard applied in other circuits. Reasoning that the “words ‘a motivating factor’ appear nowhere in the ADA” the court declined to import that standard from Title VII for the same reasons it declined to import the “solely” standard from the Rehab Act. The court pointed out that the U.S. Supreme Court in Gross v FBL Financial Services also declined to import Title VII’s motivating factor standard to the ADEA, which also contained “because of” language. The Supreme Court had reasoned that, no matter the shared goals and methods of the two laws, it would not casually “apply rules applicable under one statute to a different statute” when Congress used distinct language to describe the two standards. Accordingly, the Sixth Circuit stated that it saw “no reason to insert the one addendum (‘solely’) or the other (‘a motivating factor’) into the ADA.”

This analysis was not affected by the employee’s argument that the ADA incorporated the powers, remedies and procedures of Title VII. In the court’s view, this cross-reference, which predated the 1991 amendments, simply reflected the reality that the ADA did not have its own enforcement provisions. Further, a disability claimant would still have to establish a violation of the ADA, including causation, before using the powers, remedies, and procedures of Title VII. The court also rejected the employee’s legislative history arguments, finding it more significant that Congress never adopted the “motivating factor” language.

But-for causation. Addressing the obvious remaining question – what standard should apply in ADA cases – the Sixth Circuit looked again to the Supreme Court’s decision in Gross. “The ADEA and the ADA bar discrimination ‘because of’ an employee’s age or disability, meaning that they prohibit discrimination that is a “‘but-for’ cause of the employer’s adverse decision,” stated the court. Thus, the “same standard applies to both laws.”

Judge Clay (joined by Judge Martin) dissents in part. Judge Clay joined in the unanimous opinion that the “sole-cause” standard was inappropriate in ADA cases. However, he believed that the majority opinion failed to accomplish the goal of hearing the case en banc – which was to bring the Sixth Circuit into accord with prevailing legal opinion. Rather than viewing the ADA singly, the broader purpose of the ADA and its relationship to other statutes should have been considered to determine congressional intent. Specifically, the ADA was enacted to expand on the protections in Title VII and explicitly cross-referenced and adopted Title VII’s enforcement section. Taking that into account, he would have held that the motivating factor standard applied in Title VII cases should also apply under the ADA. Judge Clay also discussed the shortcomings of the “but for,” or “cause in fact” standard, finding it to be not much different than the “sole-cause” standard.

Judge Stranch (joined by Judges Moore, Cole, and White) dissents in part. Judge Stranch also disagreed with the imposition of the “but for” standard of causation. In her view, the language of the ADA and the traditional rules of statutory construction led to the conclusion that the motivating factor or mixed-motive analysis should be applied. She found it particularly significant that Congress was working on the applicable version of the ADA at the same time it was working on the Civil Rights Act of 1990, which amended Title VII, and that Congress chose to link the two statutes by reference. She also pointed to the legal context prevailing at the time the ADA was enacted, including the Supreme Court’s decision in Price Waterhouse v Hopkins, wherein the High Court determined that the “because of” language in Title VII meant that the plaintiff had to prove gender played a “motivating part” in the employment decision. Judge Stranch believed that when Congress enacted the ADA shortly after the Price Waterhouse decision and included the “because of” language and a cross-reference to Title VII, Congress knew that using the Title VII language created a “motivating factor” standard.

Judge Donald dissents in part. Like Judge Stranch, Judge Donald believed that understanding the full meaning of the “because of” standard required taking into account both the historical and grammatical context within which it was adopted. This included the relationship between Title VII and the ADA and presuming that Congress was well aware of the interpretation of “because of” in Price Waterhouse. With this in mind, and after examining in detail the legislative history behind the ADA and Title VII, as well as the positions taking by various circuit courts and the reasoning for each, Judge Donald wrote that the “motivating factor” causation standard should be applied in ADA cases.

Brief rejoinder by the majority. Responding to the partial dissents, the majority pointed out that “every salient argument in favor of importing the ‘motivating factor’ burden-shifting test from Title VII into the ‘because of’ test of the ADA was made in Gross. For the same reasons the Supreme Court opted not to construe the ‘because of’ language in the ADEA to incorporate this distinct statutory test from Title VII, we must do the same here.” The majority also stated that “the same tools of statutory construction that require us to resist importing the ‘solely’ language from the Rehabilitation Act into the ADA require us to resist importing the ‘motivating factor’ burden-shifting framework of Title VII into the ADA. The two inquiries are exceedingly similar.”