A basic and important question has lingered in the Seventh Circuit since 2008: What is the proper standard of causation for proving disparate treatment under the ADA, as amended?
The Two Standards
There are two likely standards of causation which the court would apply: “but-for,” and “motivating factor.”
“But-for” causation requires plaintiffs to show that the adverse employment action would not have occurred if they were not disabled and everything else remained the same.1
By contrast, a “motivating factor” analysis allows plaintiffs to prove discrimination if an individual’s disability was one reason among other legitimate reasons for the adverse employment action.2 As such, mixed-motive claims are considered more plaintiff-friendly.
The Seventh Circuit
The Seventh Circuit has rejected the “motivating factor” analysis in the past – but under an old version of the ADA.
In Serwatka v. Rockwell Automation, Inc., the court concluded that the ADA required “but-for” causation to prove disparate treatment.3 This is because, at that time, the ADA prohibited discrimination “because of” disability.
However, in 2008, while the Serwatka litigation was pending, Congress amended the ADA, and replaced “because of” with “on the basis of.”
In judicial dictum, the Seventh Circuit acknowledged that this change could permit mixed-motive claims to proceed under the ADA:
Whether ‘on the basis of’ means anything different from ‘because of,’ and whether this or any other revision to the statute matters in terms of the viability of a mixed-motive claim under the ADA, are not questions that we need to consider in this appeal. The amendments took effect nearly a year after this case was tried in February 2008 and nearly four and one-half years after Serwatka was discharged in June 2004. To the extent that any of the revisions might support a mixed-motive claim where the language of the prior version of the statute did not, they presumptively would not apply to conduct which took place prior to their effective date absent a clear indication from Congress that the changes were intended to apply retroactively.4
Although district courts acknowledge Serwatka’s limitations, they have declined to relax the standard absent further guidance from the Seventh Circuit.5 Thus, mixed-motive claims cannot currently proceed as a matter of law.
Getting to a Possible Resolution
How might the Seventh Circuit resolve this issue? Very recently, in Kurtzhals v. County of Dunn, the Seventh Circuit again acknowledged that this issue remains an “open question in this circuit. …”6 It affirmed summary judgment for the employer in that case but noted that it probably would have revisited the “but-for” causation issue if the plaintiff had actually challenged it.7
So, how might the court decide this issue if it were presented?
Seventh Circuit precedent and decisions from other circuits provide helpful guideposts.
The Seventh Circuit may be inclined to continue applying “but-for” causation. This is because it has interpreted the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, Inc. as holding that “unless a statute … provides otherwise, demonstrating “but-for” causation is part of the plaintiff’s burden in all suits under federal law.”8
As most know, the Court’s seminal decision in Gross held that the Age Discrimination in Employment Act (ADEA) prohibition against discrimination “because of” age required plaintiffs to meet “but-for” causation.9
Because the ADA, as amended, does not explicitly state that a motivating factor analysis is permitted, the Seventh Circuit may conclude that the Gross decision requires it to continue applying the “but-for” standard to ADA claims. This would keep the analysis the same as it presently is.
Disagreement among the Circuits
Other circuits have also cited Gross as requiring “but-for” causation under the ADA, as amended. For example, the Ninth Circuit approvingly cited Gross to observe that, when Congress intends to require a motivating factor analysis, it specifically uses those words – as it did with the 1991 Civil Rights Act in amending Title VII.10 The absence of motivating factor language from the 2008 ADA amendments suggests Congress intended to continue requiring “but-for” causation.
In any event, the Ninth Circuit also saw no functional difference between the phrases “because of” and “on the basis of.” According to that court, both require “but-for” causation.
By contrast, the Fifth Circuit allows plaintiffs to proceed with mixed-motive claims under a “motivating factor” analysis.11 Notably, the Fifth Circuit reached that conclusion in interpreting the pre-amendment version of the ADA which, as discussed, has been thought to require a higher standard of causation.
According to the Fifth Circuit, nothing in the text of the ADA requires plaintiffs to show that their disabilities were the sole reason for their alleged discrimination.12 Thus, plaintiffs need only show that their disabilities “actually play[ed] a role in the employer’s decision making process and ha[d] a determinative influence on the outcome.”13 It is somewhat unclear whether the Fifth Circuit's "motivating factor" analysis is actually functionally the same as a "but-for" causation standard based on its "determinative influence" language. Thus, guidance from the Supreme Court is needed.
These decisions demonstrate the disagreement among the circuits on how to resolve this issue.
Guidance from the U.S. Supreme Court may be necessary to remove any outstanding doubt on the topic, and explain whether Gross actually controls the issue. For example, the Eighth Circuit also allows mixed-motive claims to proceed but it has acknowledged that the Court’s decision in Gross may require it to revisit this issue in the future.14
Conclusion: Clarification Needed
However the Seventh Circuit ultimately decides this issue, all parties will benefit from the added clarity. While courts in the Seventh Circuit have continued to apply the “but-for” standard since Gross, it remains to be seen whether that is the correct standard moving forward.
Remember to provide your input on the future of the Health, Labor and Employment Law Institute on the survey located at HLE Survey.
This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.
1 Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 1739 (2020).
2 Bostock at 1739-40.
3 Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 963-64 (7th Cir. 2010).
4 Serwatka at 961 n.1.
5 See, e.g., Kramer v. Homeward Bound, Inc., No. 14-CV-15-SLC, 2015 WL 4459967, at *8 n.7 (W.D. Wis. July 21, 2015).
6 Kurtzhals v. County of Dunn, 969 F.3d 725, 728 (7th Cir. 2020).
7 Id. (“Kurtzhals has not complained about the use of the ‘but for’ standard, however, and so we will apply it here.”).
8 Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009).
9 557 U.S. 167, 176 (2009) (“To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the ‘but-for’ cause of the employer's adverse decision.”).
10 Murray v. Mayo Clinic, 934 F.3d 1101, 1106 (9th Cir. 2019).
11 Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (“The proper causation standard under the ADA is a ‘motivating factor’ test.”).
12 Pinkerton at 518-19.
13 Pinkerton, at 519 (quoting Soledad v. United States Department of Treasury, 304 F.3d 500, 503-04).
14 Oehmke v. Medtronic, Inc.,844 F.3d 748, 757 n.6 (8th Cir. 2016) (“Because the potential effect of Gross on our interpretation of the ADA has been only cursorily briefed by Medtronic and because we agree with the district court that Medtronic is entitled to summary judgment even under the less restrictive mixed-motive causation standard, we decline to address this important question at this time.”).