The Sixth Circuit yesterday declined to adopt the rule followed in a supermajority of Circuits for bringing a discrimination claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.  See Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF).  In at least ten other Circuits, a plaintiff bringing a discrimination claim under the ADA need only show that the plaintiff’s disability was a “motivating factor” for the adverse employment action in order to prevail.  The Sixth Circuit, however, follows the rule set forth in its 15-year old panel decision in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), which requires a showing that the disability was the “sole reason” for the adverse employment action.  Id. at 1178.

In an opinion written by Judge Merritt, the Sixth Circuit in Lewis explained that a three-judge panel of the Sixth Circuit cannot overrule the decision of another panel.  “The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”  This principle also is set forth in Rule 206(c) of the Sixth Circuit Rules (PDF).  Accordingly, the panel in Lewis (like four separate panels in other cases) could not overrule the holding in Monette, which remains good law in the Sixth Circuit.

A good practitioner’s point emerges from the Lewis case.  As Judge Merritt noted, the plaintiff could have a filed a petition pursuant to Rule 35 of the Federal Rules of Appellate Procedure requesting that her appeal initially be heard en banc, rather than by a three-judge panel, so as to “avoid the inefficiency of appealing to the panel that could not grant her the remedy that she seeks . . . .”  While en banc hearings are “not favored” (and, indeed, they remain rare), the Sixth Circuit apparently is signaling that judicial inefficiency is more disfavored.

Judge Griffin wrote a concurring opinion stating that the question presented in Lewis is appropriate for rehearing en banc on the grounds that the Sixth Circuit’s “precedent on this issue of exceptional importance is misguided and contrary to the overwhelming authority of our sister circuits.”  As the Sixth Circuit noted in its Lewis opinion, the Tenth Circuit is apparently the only other Circuit that follows the Sixth Circuit’s rule set forth in MonetteSee, e.g., Fitzgerald v. Corrections Corporation of America, 403 F.3d 1134, 1144 (10th Cir. 2005).

It looks like the Lewis case may be one of those rare candidates for rehearing en banc.  We’ll of course monitor the case to apprise you of any developments, including whether the Sixth Circuit will consider overruling its Monette decision.