Fourth Circuit Rejects ADA Mixed Motive Claims and Adopts But-For Causation Standard

Practical Law Legal Update w-001-5091 (Approx. 6 pages)

Fourth Circuit Rejects ADA Mixed Motive Claims and Adopts But-For Causation Standard

by Practical Law Labor & Employment

Background

Gentry was an executive housekeeper at the Maggie Valley Club and Resort (Club), owned by Maggie Valley Resort Management, LCC (Maggie Valley). In September 2008, Maggie Valley hired East West Partners Club Management Company, Inc. (East West) to operate the Club.

In July 2007, Gentry fell at work, and filed for workers' compensation benefits. Gentry returned to work in January 2009 with no restrictions. In January 2010, Gentry's doctor determined that, under North Carolina's workers' compensation guidelines, Gentry had a 30% permanent physical impairment to her ankle. Soon after, the Club's insurance carrier offered to settle Gentry's workers' compensation claim but Gentry declined, expressing concern that she might be terminated if she accepted. In November 2010, Gentry's workers' compensation claim ultimately settled at mediation.

In December 2010, Gentry was terminated. Gentry sued Maggie Valley and East West for:

Disability discrimination under the ADA and North Carolina common law.
Sex discrimination under Title VII and North Carolina common law.
Retaliation against Gentry for pursuing a workers' compensation claim, in violation of North Carolina common law.
Tortious interference with her employment contract with Maggie Valley.

The jury found:

East West liable for workers' compensation retaliation.
East West and the Club's general manager liable for tortious interference with Gentry's employment.
In favor of the employers on all other claims.

Gentry appealed to the Fourth Circuit, arguing that:

The district court incorrectly instructed the jury on the ADA's:
- causation standard for disability discrimination claims; and
- definitions of disability.
The district court erred in refusing to admit evidence of the employers' liability insurance and indemnification.
She is entitled to a new trial on damages for the claims on which she prevailed.

Outcome

The Fourth Circuit affirmed the judgment of the district court, holding that:

The district court correctly applied a "but-for" causation standard to Gentry's ADA claim.
Gentry's rights were not affected by any plain error in the district court's jury instruction defining "disability" as impairment that prevented or significantly restricted a person from performing a major life activity.
The district court acted within its discretion in:
- refusing to admit evidence of the employers' liability insurance coverage; and
- denying the employee's motion for a new trial on the grounds that the jury's award of damages was inadequate.

The Fourth Circuit considered the causation standard for disability discrimination claims. The district court had instructed that Gentry had to demonstrate that her disability was the "but-for" cause of her termination. On appeal, Gentry argued that the court should have adopted Title VII's "motivating factor" causation standard. The Fourth Circuit found that:

In Gross v. FBL Financial Services, Inc., the Supreme Court considered whether Title VII's "motivating factor" standard applied to claims brought under ADEA, which prohibits employers from "discriminat[ing] against any individual ... because of such individual's age." (29 U.S.C. § 623(a)(1)). The Court found that it did not because:
- unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor;
- Congress neglected to add such a provision to the ADEA when it amended Title VII to add Sections 2000e–2(m) and 2000e–5(g)(2)(B); and
- when Congress amends one statutory provision but not another, it is presumed to have acted intentionally.
(557 U.S. at 174.)
Examining the language of the ADEA, discrimination "because of" age meant that "age was the 'reason' that the employer decided to act." Therefore, "a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision." (Gross, 557 U.S. at 174.)
The Supreme Court's analysis in Gross should dictate the outcome in this case because:
- the ADA's text does not provide that a plaintiff may establish liability by showing that disability was a motivating factor in an adverse employment decision; and
- the 1991 Act that added the "motivating factor" standard to Title VII "contemporaneously amended" provisions of the ADA but did not add that standard (see Pub.L. No. 102–166, §§ 109, 315).
Title VII's "motivating factor" standard cannot be read into Title I of the ADA. This is in line with Sixth and Seventh Circuit precedent, including:
- Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc); and
- Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010).
Gentry's argument that Gross is not controlling in this case because unlike the ADEA, the ADA indirectly incorporates Title VII's "motivating factor" standard by reference (see the ADA's "Enforcement" provision, 42 U.S.C. § 12117(a)), fails because while this language incorporates Title VII's "Enforcement provisions" in § 2000e–5, it does not incorporate the "Unlawful employment practices" in § 2000e–2, including § 2000e–2(m), which establishes mixed motive employment practices as unlawful (see Serwatka, 591 F.3d at 962).
Section 2000e–5(g)(2)(B) cannot be read as somehow cutting off Section 2000e–2(m)'s causation standard from its limited application to claims of race, color, religion, sex, and national origin discrimination and applying it to claims under the ADA. (See Lewis, 681 F.3d at 320.)
To invoke Title VII's enforcement provisions, an ADA plaintiff must allege a violation of the ADA itself (42 U.S.C. § 12117(a)). The ADA's text does not provide that a violation occurs when an employer acts with mixed motives.
The ADA's text calls for a "but-for" causation standard. The ADA prohibits discrimination "on the basis of" disability (42 U.S.C. § 12112(a)). There is no "meaningful textual difference" between this language and the terms "because of," "by reason of," or "based on," terms that the Supreme Court has explained suggest "but-for" causation (see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2527–28 (2013).)
Legislative history does not suggest that "on the basis of" was intended to mean something other than but-for causation. The ADA Amendments Act (ADAAA) changed the language of the ADA to decrease the emphasis on whether a person is disabled, not to lower the causation standard.
The amended language of the ADA was enacted before Gross and therefore not in response to Gross's causation analysis.

Practical Implications

This Sixth Circuit ruling benefits employers and makes it more difficult for employees to succeed with retaliation claims under Title I of the ADA. As with Title VII retaliation claims, an employee alleging retaliation under Title I of the ADA must prove that a retaliatory motive was the "but-for" cause of the negative employment action instead of just a "motivating factor."

Fourth Circuit Rejects ADA Mixed Motive Claims and Adopts But-For Causation Standard | Practical Law