Sixth Circuit Joins Seventh Circuit in Holding that Pre-2008 ADA Cases Requires “But-for” Showing of Discrimination

By: Frank M. Nardulli

Reversing 17 years of circuit court precedent, the Sixth Circuit Court of Appeals, in an en banc decision, held that the Americans with Disabilities Act (“ADA”) requires a plaintiff to show that his or her claimed disability was a “but-for” cause for the employer’s adverse employment decision.  The decision in Lewis v. Humboldt Acquisition Corp., Case No. 09-6381 (6th Cir., May 25, 2012), marks the Sixth Circuit’s first decision analyzing the ADA’s causation standard since the Supreme Court’s decision in Gross v. FBL Financial Services Inc., 557 U.S. 167 (2009).  In that case, the Supreme Court held that a plaintiff must show that age was a “but-for” cause for the adverse action, pursuant to the Age Discrimination in Employment Act’s (“ADEA”) “because of” language, and further, the court repudiated the application of a “mixed-motives” analysis under the ADEA.  In holding that the ADA requires a “but-for” showing based on the ADA’s pre-2008 language that prohibited discrimination “because of” an employee’s disability, the Sixth Circuit agreed with the Seventh Circuit’s decision in Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (7th Cir. 2010), the only other circuit court decision addressing the issue since Gross v. FBL.

In so holding, the Sixth Circuit overruled its precedent requiring a plaintiff to show that his or her disability was the “sole reason” for the adverse employment action.  The court had previously held that such a standard applied under the ADA based on its interpretation of the Rehabilitation Act of 1973.  While holding that a “but-for” analysis applies under the ADA, the Sixth Circuit also addressed the plaintiff’s arguments in favor of a “motivating factor” analysis applicable under Title VII.  Holding that each federal anti-discrimination statute must be analyzed based upon its own text, the court held that the statutory texts and histories of Title VII and the ADA did not justify borrowing Title VII’s “mixed-motives” analysis for ADA purposes.

The Sixth Circuit’s decision is based upon the ADA’s pre-ADA Amendments Act of 2008 (“ADAAA”)  language.  The ADAAA now prohibits discrimination “on the basis of disability.”  As such, the Sixth Circuit’s holding is limited to cases governed by the pre-2008 statute and any statements regarding the causation standard under the ADA are dicta for cases brought under the ADAAA.