ADA Plaintiffs Must Prove Disability is Sole Cause of Adverse Action

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The 7th Circuit has ruled that disabled employees whose employers have mixed motives for taking adverse job actions against them have no recourse under the Americans with Disabilities Act (ADA).

In a judgment that scraps the appeals court's previous position that mixed- motive cases are viable under the ADA, the 7th Circuit held that a disabled plaintiff has no ADA remedy if his or her disability only partly, rather than solely, motivated the employer's adverse action.

Therefore, unless a disabled plaintiff can establish that an adverse employment action would not have occurred "but for" the discriminatory motive, there is no ADA recovery, the three judge panel held Jan. 15.

The panel members cited the Supreme Court's 2009 decision in Gross v. FBL Financial Services., Inc., as their reason for departing from the 7th Circuit's prior stance that limited remedies of declaratory and injunctive relief, and attorneys fees and costs, are available in mixed motive cases under the ADA.

Their legal about-face helps employers who can prove that a reason other than the person's disability contributed to treating disabled workers adversely in hiring, advancement, training, compensation, discharge or other terms and conditions of employment.

Kathleen Serwatka sued Rockwell Automation Inc. under the ADA after she was fired in 2004. She received only limited relief in 2008 from the U.S. District Court for the Eastern District of Wisconsin because the jury found that her ex-employer's perception that she was disabled because of her problems standing and walking was not Rockwell's only reason for terminating her. The jury said Rockwell would have let her go even had it not perceived her to be disabled.

Given these mixed motives and the consequent lack of available ADA relief, the 7th Circuit allowed Rockwell's appeal and vacated the district court's judgment.

Employees who want to sue for discrimination under the ADA must now show that their disability was the sole cause of their employer's adverse action, says Michael Dahlem, a solo practitioner.

"It's clearly beneficial for employers," Dahlem says. "I suspect the impact will be that plaintiffs attorneys may be more reluctant to bring a case where there is likely to be a mixed-motive at issue because the chances then of recovering anything would go down."

Summary Success

More summary judgment motions are likely to succeed in the decision's wake, predicts Rockwell's attorney, Robert H. Duffy.

"It's going to make it a lot easier for employers, both in the 7th Circuit and in other circuits, to try to move for summary judgment on some of these claims because of the fact that the plaintiff is going to have to meet that but-for causation standard," explains Duffy, a partner at Quarles & Brady.

The 7th Circuit concluded that its old position permitting ADA relief in mixed motive cases "cannot be sustained" in light of Gross.

In Gross, the Supreme Court held that the Age Discrimination in Employment Act (ADEA) doesn't authorize recovery in age discrimination cases involving mixed- motives because the ADEA, unlike Title VII, does not explicitly authorize mixed- motive claims. Therefore plaintiffs must prove that but for their age, the employer would not have taken the adverse action.

In becoming what is apparently the first appeals court to extend that rationale to disability discrimination cases, the 7th Circuit cited similar wording in the ADA which forbids employers from adversely treating any individual "because of the disability of such individual."

"Like the ADEA, the ADA renders employers liable for employment decisions made 'because of' a person's disability, and Gross construes 'because of' to require a showing of but-for causation," the panel reasoned. "Gross makes clear that in the absence of any additional text bringing mixed-motive claims within the reach of the statute, the statute's 'because of' language demands proof that a forbidden consideration--here, the employee's perceived disability--was a 'but for' cause of the adverse reaction complained of."

Amendment Danger

Lisa Baiocchi, an associate at Constangy Brooks & Smith, agrees the decision is "good news overall for employers."

But she cautions that the 7th Circuit explicitly left open the question of whether new pro-plaintiff ADA amendments that kicked in Jan. 1, 2009, could revive mixed- motive relief under the ADA.

Congress could also pass a law rolling back Gross, as it has to nullify earlier Supreme Court dicta that it perceived to undercut the purpose of anti-discrimination laws, Baiocchi says.

The 7th Circuit itself commented that Congress has implemented "substantial" reforms in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which aim to reinstate the ADA's broad scope of protection that was constrained by previous Supreme Court decisions.

The panel pointed out the new law replaces the ADA's prohibition against discrimination "because of disability" with a prohibition against discrimination "on the basis of" disability.

However the 7th Circuit said it didn't have to interpret the changed wording because Serwatka was terminated in 2004 before the ADAAA was in force.

Duffy believes the result in Serwatka's case would not have changed under the ADAAA. "It's effectively the same [statutory] language," he says. "But the 7th Circuit at some point will need to look at whether that change in the language has any impact."

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