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But-for causation, not motivating factor standard, applies to ADA bias claims

By Marjorie Johnson, J.D.

The court reversed a prior landmark case which held that the motivating factor causation standard applied since it was irreconcilable with subsequent Supreme Court decisions applying the but-for standard to ADEA discrimination and Title VII retaliation claims.

In an employee’s ADA disability discrimination lawsuit, a district court correctly instructed the jury to apply a “but-for” causation standard, rather than the “motivating factor” standard previously adopted by the Ninth Circuit before the Supreme Court issued its decision in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar. A Ninth Circuit panel ruled that its prior decision in Head v. Glacier Northwest, Inc. was no longer good law since its reasoning was irreconcilable with the subsequent Supreme Court precedent, whether based on the ADA’s cross-reference to § 2000e-5(g)(2)(B) or on the ADA’s text (Murray v. Mayo Clinic, August 20, 2019, Pearson, B.).

Jury instructed to apply but-for standard. The employee brought this ADA lawsuit against Mayo Clinic after he was discharged. Prior to trial, the parties submitted joint proposed jury instructions but disagreed whether his ADA discrimination claim should be tried under a “but-for” or a “motivating factor” causation standard. The employee argued that the Ninth Circuit’s decision in Head required him to show only that the employer’s belief that he had a disability was a motivating factor in the adverse employment decisions. However, the court disagreed and instructed the jury to apply the but-for causation standard by requiring him to prove he was discharged because of his disability.

In denying the employee’s motion for reconsideration, the district court found that the Supreme Court’s Gross and Nassar rulings abrogated the Ninth Circuit’s reasoning in Head and concluded that the but-for causation standard applied. After the jury returned a verdict for the defendants on all claims, the employee appealed.

Statutory context. At issue was Title I of the ADA, which prohibits covered employers from discriminating against a qualified individual “on the basis of disability.” It also contains an enforcement provision that cross-references specific portions of Title VII. This includes section 2000e-5, which states that those who prove a violation under section 2000e-2(m) may be awarded only limited relief if the employer demonstrates that it “would have taken the same action in the absence of the impermissible motivating factor.” Section 2000e-2(m) provides that an unlawful employment practice is established “when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”

Ninth Circuit precedent. The Ninth Circuit first analyzed the standard for causation in an ADA discrimination action in Head, where it joined seven other circuits in concluding that a “motivating factor” standard of causation was “most consistent with the plain language of the statute and the purposes of the ADA.” Thus, the Head court held “the ADA outlaws adverse employment decisions motivated, even in part, by animus based on a plaintiff’s disability or request for an accommodation—a motivating factor standard.”

Subsequent Supreme Court decisions. Four years later, the Supreme Court decided Gross, where it held that the ADEA requires a plaintiff to prove that age was the “but-for” cause of the adverse employment decision, declining to extend the “motivating factor” standard to ADEA age discrimination claims. Four years after that, the High Court in Nassar again declined to extend the motivating factor standard, this time to Title VII retaliation claims.

“Clearly irreconcilable.” After the Gross and Nassar rulings, circuits began retreating from the motivating factor standard in ADA cases, though the Ninth Circuit had not yet addressed whether the rulings “eroded Head’s vitality.” Determining it was now time to do so, the appeals court rejected the employee’s contention that it was bound by its prior decision. While a three-judge panel may generally not overrule a prior decision, it may do so if an intervening Supreme Court decision undermines the existing Ninth Circuit precedent and both cases are “closely on point.” The issue decided by the higher court must “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.”

Finding that Head’s reasoning was clearly irreconcilable with Gross and Nassar, the Ninth Circuit overruled Head’s holding that a plaintiff bringing a discrimination claim under Title I of the ADA need show only that a disability was a motivating factor of the adverse employment action. Instead, the plaintiff must show that the adverse employment action would not have occurred but for the disability.

Textual reasoning. Gross’s reasoning directly contradicted the textual reasoning applied in Head and by other circuits to conclude that Title VII’s motivating factor standard applied to ADA claims. Like the ADEA—and unlike Title VII—the ADA does not contain any explicit “motivating factor” language. Rather, Title I of the ADA provides that a plaintiff must show discrimination “on the basis of disability.” Under Gross, that phrase indicates but-for causation.

Nassar’s reasoning also directly undercut that of the courts which relied on the ADA’s incorporation of Section 2000e-5, since the Supreme Court rejected the argument that Section 2000e-2(m) (Title VII’s motivating-factor causation provision) applied to Title VII retaliation claims. The Court emphasized that “the text of the motivating-factor provision, while it begins by referring to ‘unlawful employment practices,’ then proceeds to address only five of the seven prohibited discriminatory actions—actions based on the employee’s status, i.e., race, color, religion, sex, and national origin.” According to Nassar, the plain language of Section 2000e-2(m) barred its application to retaliation claims, and “it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope.” The same logic applied to ADA discrimination claims, the Ninth Circuit explained.