The United States Court of Appeals for the Sixth Circuit recently announced a change to the causation standard that will be used when adjudicating cases under the Americans with Disabilities Act (ADA). This change will affect ADA cases contested in the federal courts of that circuit, which include the states of Kentucky, Michigan, Ohio, and Tennessee.
For the past seventeen years, courts in the Sixth Circuit required plaintiffs to prove that their disability was the “sole” reason for the adverse employment action taken against them. However, that changed when the Court handed down their en banc decision in Lewis v. Humboldt Acquisition Corporation, Inc. [pdf]. Relying upon the text of the ADA, the Court in Lewis held that because the ADA prohibited discrimination “because of” disability, the ADA prohibited discrimination that was the “but-for” cause of the employer’s adverse employment decision.
In Lewis, the plaintiff had been employed by the defendant as a registered nurse at one of the company’s retirement homes. The plaintiff was terminated in March, 2006. The plaintiff claimed her termination was the result of a medical condition that made it difficult for her to walk and that occasionally required her to use a wheelchair. The company, on the other hand, stated that the plaintiff was dismissed because of an outburst that occurred at work in which she allegedly yelled, used profanity, and criticized her supervisors.
The plaintiff sued her former employer alleging discrimination under the ADA. The case proceeded to a jury trial. At the close of trial, much debate was had concerning the jury instructions and the appropriate causation standard that should be used. The plaintiff asked the court to instruct the jury that “if the complained of discrimination was a motivating factor in the adverse employment decision,” the plaintiff should prevail. The defendant countered, and argued the jury should be instructed that the plaintiff may only prevail if she proved “the fact that [the] plaintiff was a qualified individual with a disability was the sole reason for the defendant’s decision to terminate [the] plaintiff.” In keeping with prior precedent in the Sixth Circuit, the district court adopted the defendant’s proposed instruction. The jury returned verdict in favor of the defendant, and the plaintiff appealed.
Interestingly, neither the proposed causation standard advocated by the plaintiff nor the proposed causation standard advocated by the defendant was adopted by the Court. The plaintiff argued the Court should adopt the “motivating factor” test. This test is used in other circuits. However, the Court pointed out that the text of the ADA does not contain the phrase “motivating factor.” Instead, that phrase appears to be borrowed from the text of Title VII. The Court dismissed the plaintiff’s argument by noting that it had no license to import a phrase contained in Title VII into the ADA.
Similarly, the defendant urged the Court to remain consistent with prior Sixth Circuit precedent and require that the plaintiff prove that her disability was the “sole” reason for the adverse action. The Court pointed out that no other circuit has adopted the “sole” basis test, and that the text of the ADA does not contain the term “solely” as the Rehabilitation Act does. As a result, the Court refused to read the term “solely,” which is found in the Rehabilitation Act into the text of the ADA.
Instead, the Court adopted a “but-for” test derived from the text of the ADA and the United States Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167 (2009). The Court concluded that the ADA’s text prohibited discrimination “because of” a disability and that the “but-for” test adopted by the Supreme Court in Gross when confronted with the similar language contained in the Age Discrimination in Employment Act (ADEA) should apply to the ADA.
This decision will have an impact upon ADA litigation in the Sixth Circuit. First, this decision could make it easier for plaintiffs to proceed with ADA claims. The “but-for” standard is not as stringent as the “sole reason” standard, and as a result more plaintiffs could potentially prove their claims. Additionally, because of the new standard, some uncertainty around how the court will interpret that standard will be present. It will likely be some time before uniform standards that are clearly understood by all parties are adopted.
As an employer, this decision means that having documentation to support adverse employment actions involving individuals with disabilities will be more important than ever. Taking time now to conduct some additional training regarding documentation requirements could save time and money in the future.
