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Circuits come closer on 'motivating factor' test in ADA cases p2

We are continuing our discussion of a 6th U.S. Circuit Court of Appeals decision. A woman claimed that her former employer fired her at least in part because her medical condition required her to use a wheelchair. A decision like that would have been a violation of the Americans with Disabilities Act.

The company, however, argued that there was another reason -- an outburst directed at her supervisor -- and, therefore, there was no violation. Even if her medical condition were a consideration, the company said, it was not the sole reason she was discharged. Because the ADA requires the disability to be the sole cause of the employment action, the plaintiff was out of luck.

The 6th Circuit is the only circuit that still adheres to the "sole cause" reading of the federal statute. Every other circuit has adopted a less onerous test, the "motivating factor" test. In those circuits, if a disability is a motivating factor for the employment action, there is discrimination in violation of the ADA.

The majority chose to adopt a rule that falls somewhere in between, according to the opinion. Other factors may play a role in the company's decision, but the disability must be the motivating factor. The disability must pass the "but for" test: But for the disability, the woman would not have been fired.

Causation is one of those topics that law students and courts have debated for centuries. Without determining the cause of an accident, for example, you can't determine who is liable for the damages. The debate is about how far back in the chain of events you go to find the "but for" cause, or "cause in fact." In this case, for example, the company may have been looking for a reason to let the employee go, because her disability was costing them money or making it difficult for her coworkers. The actual cause of her termination was the outburst, but the underlying cause was her disability.

We will finish this up in our next post.

Source: Thomson Reuters News & Insight, "6th Circuit shifts test for disability discrimination," Terry Baynes, May 25, 2012

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