Earlier today in its en banc decision in Lewis v. Humboldt Acquisition Corp., No. 09-6381 (PDF), the Sixth Circuit unanimously overruled the standard set forth in its 16 year-old decision in Monette v. Electronic Data Systems Corp., 990 F.3d 1173 (6th Cir. 1996), which required a plaintiff bringing a discrimination claim under the Americans with Disabilities Act (the “ADA”) to prove that the plaintiff’s disability was the “sole” reason for an adverse employment action in order to prevail. Back on June 3, 2011, we predicted that “[t]he Sixth Circuit in Lewis, sitting en banc, will overrule Monette,” and our prediction has come true. We further predicted that the en banc Court would adopt the rule followed in the supermajority of Circuits requiring a plaintiff bringing a discrimination claim under the ADA to show that the plaintiff’s disability was merely a “motivating factor” for the adverse employment action. But a divided Sixth Circuit, in a significant move, refused to adopt the prevailing “motivating factor” standard and instead adopted a new rule based on the text of the ADA itself. In doing so, the Sixth Circuit rejected dueling interpretations of the statute urged by both the employee and employer in this case.
Now, in the Sixth Circuit, a plaintiff bringing a discrimination claim under the ADA must prove that the plaintiff’s disability was a “but-for” cause of an adverse employment decision, as opposed to the “sole” reason or a mere “motivating factor.” Judge Sutton, writing for the en banc majority in support of the Sixth Circuit’s new rule, reasoned that the Court’s ruling was commanded by the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167 (2009), in which the Justices construed language in the Age Discrimination in Employment Act (“ADEA”) that parallels language in the ADA. As Judge Sutton wrote: “The ADEA and the ADA bar discrimination ‘because of’ an employee’s age or disability, meaning that they prohibit discrimination that is a ‘but-for’ cause of the employer’s adverse decision.” The same standard applies to both laws.” In refusing to adopt the standard followed by at least ten other Circuits, Judge Sutton explained that “[j]ust as we erred in reading the ‘solely’ language from the Rehabilitation Act [of 1973] into the ADA based on the shared purposes and histories of the two laws, so we would err by reading the ‘motivating factor’ language from Title VII into the ADA.” Judge Sutton made clear that “in the end it is the text that matters.”
Judge Clay, concurring in part and dissenting in part, lamented that “[t]he majority opinion fails to accomplish the original goal of this Court in choosing to hear this case en banc—which was to bring this Circuit into accord with the prevailing legal opinion on the issue addressed by the en banc Court,” and instead “continues to leave the Sixth Circuit opposed to the multiplicity of other circuits on the issue of the standard of causation required to prove discrimination under the [ADA].”
So what does the Sixth Circuit’s newly crafted standard mean for plaintiffs bringing discrimination claims under the ADA in the Sixth Circuit? In Judge Clay’s view, “a but-for standard suggests the availability of a much more limited basis for recovery by a plaintiff than would be indicated by the motivating-factor standard . . . .” However, only time will reveal exactly where the Sixth Circuit’s new standard falls on the continuum between the restrictive “sole” reason standard repudiated by the Sixth Circuit and the more liberal “motivating factor” standard followed in most other Circuits.
We’ll of course continue to follow subsequent Sixth Circuit cases addressing the new standard, as well as to monitor whether any of the other Circuits become compelled to reconsider the “motivating factor” standard in light of today’s Sixth Circuit’s decision.
