The Seventh Circuit Holds that Under the ADA Proof of Mixed Motive Will Not Suffice
March 22, 2010 | Posted by Joseph E. Gumina
The U.S. Court of Appeals for the Seventh Circuit, which oversees the federal district courts for Illinois, Indiana, and Wisconsin, recently held that an employee complaining of discriminatory discharge under the Americans with Disabilities Act (“ADA”) must now show that his or her employer would not have fired him “but for” his actual or perceived disability. The Seventh Circuit’s decision falls in-line with the recent U.S. Supreme Court’s decision under the Age Discrimination in Employment Act (“ADEA”) that held that an employee alleging a claim of age discrimination must show that age was the determinative factor in the employer’s decision to discharge, not just a motivating one. See OCHD’s August 2009 Labor and Employment Newsletter.
These two decisions are significant as they each recognize a burden of proof that is different and more difficult than the burden of proof required under a claim of discrimination under Title VII which prohibits discrimination on the basis of race, color, religion, national origin and sex. For an employee to succeed on a claim of discriminatory discharge under Title VII, the employee only needs to establish that either his race, color, religion, national origin or sex was a motivating factor in the employer’s decision to terminate although other factors, even lawful ones, may have also motivated the employer’s decision. When, however, an employer can prove that it would have taken the same action in the absence of the illegal motivating reason, a successful employee would only be limited to recovering declaratory and injunctive relief along with his or her attorney’s fees and costs, but would not be entitled to any actual damages.
The federal courts have routinely applied Title VII’s “mixed motive” analysis to claims under the ADEA and ADA. However, the U.S. Supreme Court’s 2009 decision under the ADEA and the Seventh Circuit’s 2010 decision under the ADA both recognize that the statutory language in the ADEA and the ADA respectively lacks the language in Title VII expressly recognizing mixed-motive claims. The ADEA employs language that forbids an employer from taking adverse action against any individual “because of such individual’s age.” The ADA, likewise, uses similar language and provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual…” Consequently, like the ADEA, the ADA renders employers liable for employment decisions made “because of” a person’s disability; meaning that an individual’s disability was the “reason” that the employer decided to act.
Employees wishing to pursue claims for age discrimination under the ADEA or for disability discrimination under the ADA will now have to come to court with evidence that either their age or disability was “the reason” for the employer’s alleged unlawful action; not just a motivating reason. This standard will make such claims more difficult to establish. For example, an employee complaining of discriminatory discharge under the ADA will have to show that his or her employer would not have fired him “but for” his actual or perceived disability; as proof of mixed motives will no longer suffice.