What’s The Correct Standard of Liability Under the ADA?
In Siring v. Oregon State Bd. of Higher Educ., an Oregon federal district court held that the but-for standard of causation applicable to claims under the Age Discrimination in Employment Act of 1967 (ADEA), as well as to retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII), is not applicable to discrimination claims under the Americans With Disabilities Act of 1990 (ADA). Instead, the court concluded, “the causation standard for ADA discrimination claims is „motivating factor.‟” The plaintiff prevailed on her ADA claim at a jury trial conducted shortly thereafter.
The district court grounded its conclusion in the legislative history of the ADA Amendments Act of 2008 (ADAAA). The court observed that the ADAAA had changed the “causation language” for ADA discrimination claims from “because of the disability” to “on the basis of disability” – a change the court believed made an ADA discrimination claim “less similar” to a Title VII retaliation claim. In reliance on the House Report on the ADAAA, the court concluded that the ADA, as amended, was “meant to „mirror the structure of nondiscrimination protected in‟” Title VII.
Employers, however, might argue otherwise.
Although the ADAAA did amend the language of the ADA, the House Report does not provide any indication that Congress intended to affect a change in the statute’s causation standard. Rather, the summary of the ADAAA in the House Report states that the bill was intended to amend “the definition of disability” and to provide “clarifications related to terminology used in the definition,” thereby reversing several U.S. Supreme Court opinions that the bill’s sponsors believed had erroneously “served to narrow the definition of disability.”
It is true, as the court wrote, that the House Report states that the purpose of the change was “to mirror the structure of nondiscrimination protection in Title VII.” But the very next sentence in the Report explains the purpose of the change:
This more direct language, structured like Title VII, ensures that the emphasis in questions of disability discrimination is properly on the critical inquiry of whether a qualified person has been discriminated against on the basis of disability, and not unduly focused on the preliminary question of whether a particular person is even a “person with a disability” with any protection under the Act at all.
Therefore, the ADAAA sought only to make a disability more like the mostly immutable characteristics (i.e., race, color, religion, sex, and national origin) protected under Title VII‟s antidiscrimination provision, not to change the liability standard under the ADA.
Congress, of course, could have amended the causation standard under the ADA as part of the Civil Rights Act of 1991 (CRA), when it amended 42 U.S.C. § 2000e-2 to expressly adopt the “motivating factor” standard for Title VII discrimination cases, but chose not to do so. The Supreme Court in Gross v. FBL Financial Services, Inc. relied, in part, on Congress‟ decision not to amend the ADEA as part of the CRA in holding that the more-demanding but-for standard of causation applied to ADEA claims. Likewise, when the Supreme Court held in University of Texas Southwestern Medical Center v. Nassar that the but-for standard also applied to Title VII retaliation claims, the Court relied upon Congress‟ decision not to insert the “motivating factor” standard in that same statute’s anti-retaliation provision as part of the CRA.
Neither the CRA nor the ADAAA amended the enforcement provisions of the ADA to incorporate the provisions of 42 U.S.C. § 2000e-2 or otherwise adopt the “motivating factor” standard. Nevertheless, the district court in Siring wrote that, in the section of the House Report on the ADAAA explaining the new “on the basis of disability” language, Congress “not[ed] that „indirect evidence‟ and „mixed motive‟ cases should be permitted under the ADA discrimination causes of action.”
The House Report does indeed refer to “indirect evidence.” The Report indicates that the ADAAA, as originally introduced, had eliminated the word “qualified” with respect to individuals with disabilities, which raised questions “about whether the original bill would change the framework of shifting burdens for plaintiffs and defendants under Texas Dep’t of Community Affairs v. Burdine in those ADA cases governed by Burdine.” The Report observed that, as “[d]enveloped in the context of Title VII, the Burdine framework applies to ADA employment cases that involve indirect evidence of discrimination.” The Report offered the assurance that “the Burdine framework remains intact and is not affected by the amendments.”
But Burdine, while addressing at some length the Supreme Court’s decision in McDonnell Douglas Corp. v. Green, makes no mention whatsoever of a “motivating factor” standard. In contrast, the legislative history of the CRA shows that when Congress amended the antidiscrimination provision of Title VII to adopt the motivating-factor standard, it focused not on Burdine, but on Price Waterhouse v. Hopkins, a mixed-motive case. Mixed-motive cases are not the same as indirect-evidence cases, however. Moreover, and contrary to the district court’s finding in Siring, the term “mixed motive” does not appear anywhere in the House Report on the ADAAA.
The district court in Siring, of course, was bound by existing circuit precedent, a quandary faced by many district courts addressing the question of whether the but-for standard applies to other long-standing employment statutes. But the failure to include an express burden-shifting standard in the ADA, either as originally enacted in 1990 or as amended in 2008, provides a strong argument, found persuasive by the Supreme Court in both Gross and Nassar, that the but-for test is the proper standard of causation in ADA discrimination claims.