Requests for en banc hearings, in which all members of an appellate court hear a case, are not granted lightly. These hearings expend the court’s resources and often require great effort to secure on the part of appellants. So, when the 6th Circuit panel in Lewis v. Humboldt Acquisition Corp. handed Susan Lewis a road map to such an appeal in its March 17 opinion, employment lawyers throughout the circuit took note.
However, the move wasn’t completely unexpected. The 6th Circuit, along with the 10th, is one of just two circuits that apply a “sole reason” standard in discrimination cases brought under the Americans with Disabilities Act (ADA). In all other circuits, ADA cases apply the Title VII standard—requiring plaintiffs to prove only that their disability was a “contributing factor” in their dismissal. The 6th Circuit, based on precedent set in Monette v. Electronic Data Systems Corp., applies the stricter “sole reason” standard derived from the Rehabilitation Act (see “Monette Malady”). In the 6th Circuit, only a Supreme Court ruling or an en banc hearing can overturn the previous panel’s ruling.
When it comes to disability discrimination cases, the 6th Circuit’s interpretation of the ADA in Monette has tied the court’s hands since 1996. When the ADA was enacted, courts were left to interpret what standards best applied, and most looked to either Title VII or the Rehabilitation Act. Most circuits, citing similarities in the language of the ADA and Title VII, applied the more- lenient “motivating factor” standard, but the 6th Circuit, noting substantive similarities and legislative history that suggested the ADA was patterned after the Rehabilitation Act, chose instead to borrow its “sole reason” standard.
The 6th Circuit typically hears very few cases en banc each year (between eight and 12), so its decision to grant rehearing to Lewis is significant. Experts agree that the hearing is a harbinger of change.