Circuits come closer on ‘motivating factor’ test in ADA cases p3

We are wrapping up our discussion of a 6th Circuit Court of Appeals decision that the majority said would bring the circuit into line with the other federal appeals courts. It will not, according to critics. The decision adds another variation to the interpretation of what lawyers refer to as causation language in the Americans with Disabilities Act.

For quite some time, the circuits held that an employment decision based solely on a disability is a violation of the ADA. Over time, that “sole cause” theory lost ground to another test, the “motivating factor” test. Every circuit but the 6th has adopted the motivating factor test.

In our last post, we were talking about how to determine cause. If a disability is the sole cause of an employee’s termination, there can’t be anything else in the mix. If the disability has been an irritant, for example, and the employee can persuade the court that it was among the reasons for her discharge, then it’s a motivating factor. The law asks us to trace the events back in time to determine what or who is responsible for the harm to the plaintiff.

The ADA’s language does not make it clear how far back we should go to find the cause. It says merely that there is a violation if an employee action occurs “because of” the employee’s disability. Over time, the federal appeals courts have come to read that as requiring the disability to be a motivating factor — except the 6th Circuit, which now says the disability must be the “but for” cause for the action is a violation of the ADA.

Of the 16 judges on the panel, seven dissented for a variety of reasons. The dissenting opinions scolded the majority for expressing the intention of aligning with other circuits only to introduce a different rule. One dissent pointed out that a “but for” test is tantamount to determining that the disability is the “cause in fact” — that is, the employment action would not have occurred without the disability. Instead of the disability being just one motivating factor, the disability will now have to be the most motivating factor. Given her disability and her alleged outburst, the plaintiff in this case would only prevail if the disability tipped the scales in favor of firing her.

In the end, the decision means that federal circuit courts no longer adhere to the “sole cause” reading of the ADA. The 6th Circuit is still the outlier with its “but for” rule.

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

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