but for

Hope everyone had a happy Easter and, as in my case, a happy start to the Passover holiday. Today’s blog entry come from one of the blogs that is in my blog roll, Wait a Second. The case is Natofsky v. The City of New York decided on April 18, 2019 out of the Second Circuit. It is a case involving a hard of hearing individual that was terminated from a highly paid position with the City of New York. He claimed that his hearing loss was a motivating factor in the termination. The City defended on the ground that motivating factor was not the proper rule. Here is the other thing. It wasn’t an ADA case at all. Rather, it was a case involving the Rehabilitation Act, New York law and New York City law. Finally, the District Court adopted as the causation standard a sole cause standard. As usual, the blog entry is divided into categories and they are: majority reasoning; dissent’s reasoning; and takeaways; and just in. The reader is free to focus on any or all of the categories.

I

Majority Reasoning

1. The Rehabilitation Act provides at 29 U.S.C. §794(a) that no individual can be subject to discrimination in any program or activity receiving Federal financial assistance solely by reason of his or her disability.
2. On the other hand, the ADA at 42 U.S.C. §12112(a) makes it unlawful for an employer to discriminate against an individual on the basis of disability.
3. In 1992, Congress amended the Rehabilitation Act to add a provision stating that the standards used to determine whether the Rehabilitation Act has been violated in a complaint alleging employment discrimination are the standards applied under Title I of the ADA. 29 U.S.C. §794(d).
4. Whether §794(d) requires the ADA causation standard is a matter of first impression in the Second Circuit, and the court holds that an employment discrimination claim under the Rehabilitation Act is the same causation standard as an employment discrimination claim under the ADA.
5. An established canon of construction says that a specific provision controls over one or more general application. §794(d) is more specific than §794(a), and therefore, trumps the causation standard expressed in §794(a) in the employment discrimination context. In other words, §794(a) establishes a general causation standard applicable to most discrimination claim brought under the Rehabilitation Act, but §794(d) [the opinion actually has a typo here calling it §749, but I am sure that will be corrected later], removes employment discrimination claim from the application of §794(a)’s general causation standard by mandating the ADA’s causation standard.
6. In a footnote, the court noted that the point of view that §794(d) trumps §794(a) in Rehabilitation Act employment cases is not a universal point of view. In particular, the Fifth Circuit reached the opposite conclusion. Even so, the Second Circuit says it has good reason to disagree with the Fifth Circuit because §794(d) came later in time and speaks specifically to causation in employment discrimination cases brought under the Rehabilitation Act. Further, establishing §794(d) as a carve out for employment discrimination claims does not require Congress amending the language of §794(a)’s general causation standard because that standard continues to govern all discrimination claims arising under the Rehabilitation Act except for employment discrimination claims.
7. While the Second Circuit previously has gone on record saying the Rehabilitation Act does not permit mixed motive suits, that is not the same as stating that the causation standard for Rehabilitation Act employment claims is a “solely by reason of” standard.
8. Title I of the ADA at 42 U.S.C. §12112(a) prohibits employers from discriminating against a qualified individual on the basis of disability in regard to the hiring, advancement, or discharge of employees.
9. Historically, the Second Circuit has applied a mixed motive test to ADA claims whereby the disability need only be a motivating factor in the employer’s adverse employment action but need not be the sole but for cause. At the time of those cases, the ADA prohibited discriminatory acts that were engaged in “because of,” a disability, instead of “on the basis of,” which is the case now.
10. The mixed motive test originates from Title VII at 42 U.S.C. §2000(e)-2(a)(1), which prohibits employment discrimination “because of,” an individual’s race, color, religion, sex, or national origin. Under Title VII, plaintiffs can prevail if they show that the discrimination was a motivating factor in the defendant’s adverse employment action. That said, a defendant can avoid all liability if it can prove that it would have taken the same action regardless of any impermissible consideration.
11. Citing to Gross, which we discussed here, and to Nassar, which we discussed here, the Second Circuit said that the ADA does not include a set of provisions like Title VII’s §2000e-2(m) that permits a plaintiff to prove employment discrimination by showing the discrimination was a risk motivating factor in the adverse decision. Further, no express instruction from Congress in the ADA itself exists that the motivating factor test applies.
12. When Congress added §2000e-2(m) to Title VII, it contemporaneously amended the ADA but did not amend the ADA to include a motivating factor test.
13. The Fourth, Sixth, and Seventh Circuits currently require a plaintiff alleging a claim of employment discrimination under the ADA to prove that discrimination was the but for cause of any adverse employment action.
14. Absent from the ADA is anything like §2000e-2(m), which establishes a mixed motive test.
15. While the ADA does incorporate §2000e-5(g)(2)(B) that cross references §2000e-2(m), that is of no help because that section deals exclusively with the remedies available to plaintiff’s that have first proven of violation under §2000e-2(m), which makes no mention of disability.
16. By incorporating §2000e-5, into the ADA, it can be assumed that Congress was aware that some of those provisions would apply only to Title VII cases and not to the ADA.
17. Citing to Gross, the court finds no reason to hold that any meaningful difference exists between “on the basis of,” “because of,” or “based on,” that would require any other causation standard than but for.
18. Nothing in the legislative history of the ADA indicates that “on the basis of,” was supposed to lower the causation standard for employment discrimination claims below the traditional but for standard. The legislative history that does exist suggest that the language was changed to decrease the emphasis on whether a person has a disability and not to lower the causation standard.
19. The evidence is simply not there for the plaintiff to prevail on a but for causation standard.
20. Plaintiff also alleged a cat’s paw theory of liability, which allows for a discriminatory motive to be imputed to a final decision-maker if the decision-maker’s adverse employment action was proximately caused by a subordinate having a discriminatory motive and intended to bring about the adverse employment action. While cat’s paw liability applicability to cases outside of the mixed motive context is an important one, the court decides to decline the opportunity to take on that question because defendants waived any objection to proceeding under that theory.
21. Even assuming cat’s paw liability applies, the evidence is simply not there to justify application of the doctrine against plaintiff’s supervisors.
22. The facts aren’t there to allow plaintiff’s failure to accommodate claims to go forward.
23. The facts are also not there to allow plaintiff’s retaliation claims to go forward.

II

Dissent’s Reasoning (Judge Chin)

1. While a but for causation standard applies to the retaliation claim, discrimination and failure to accommodate claims brought under Rehabilitation Act are governed by the same standards that courts have uniformly applied for more than two decades, i.e. mixed motive.
2. The issue is whether the ADA continued to use a motivating factor standard in light of the 2000 amendment to the ADA and the Supreme Court’s decision in Gross. Judge Chin believes the answer to that question is yes.
3. Gross does not apply to ADA claims. That case was an Age Discrimination in Employment Act and not an ADA case.
4. In Gross, the court specifically mentioned that Title VII and the Age Discrimination in Employment Act are set up in fundamentally different ways with respect to the relevant burden of persuasion. That isn’t the case with the ADA as the ADA incorporates the powers, remedies, and procedures of Title VII. Therefore, different rules apply to the ADA and to the Rehabilitation Act than they do to the Age Discrimination in Employment Act.
5. In Gross, the Supreme Court held that Age Discrimination in Employment Act claims are governed by the but for standard because the court had never held that Title VII’s motivating factor standard is applicable to Age Discrimination in Employment Act claims, and because Congress neglected to add a motivating factor provision to the Age Discrimination in Employment Act when it amended Title VII to add §§2000e-2(m) and 42 U.S.C. §2000e-5(g)(2)(B) while contemporaneously amending the Age Discrimination in Employment Act in several other ways.
6. ¶II5 simply cannot apply to the ADA. Motivating factor standard has governed the ADA cases for more than two decades. Further, when Congress amended Title VII in 1991 to include the motivating factor language, it incorporated the motivating factor language into the ADA because the ADA at 42 U.S.C. §12117(a) explicitly refers to and adopts the enforcement provisions of Title VII, including §2000e-5. Therefore, citing to a dissenting opinion in Lewis v. Humboldt Acquisition Corporation, which we discussed here, you simply cannot draw the same inference from Congress’s actions as the Supreme Court did in Gross for Age Discrimination in Employment Act claims when it comes to the ADA.
7. The 2008 amendment to the ADA show that Congress wanted to retain not eliminate the motivating factor standard. In particular, the primary purpose of the 2008 amendments was to reinstate a broad scope of protection to be available under the ADA because several Supreme Court cases had narrowed that scope of protection. Thus, Judge Chin fails to understand how the majority can posit that the 2008 amendments warrant deviating from the motivating factor standard that had been applied for years before the amendments.
8. Congress could have changed the ADA’s causation standard with the 2008 amendment but did not do so. Where Congress fails to disturb a consistent judicial interpretation of the statute, that provides indication Congress at least acquiesces in if not affirms that interpretation.
9. Since Congress amended the ADA to reject an interpretation of the ADA that was not aligned with congressional intent, that demonstrates it is likely it would also have done so for the ADA’s causation standard if courts were applying the wrong standard. The fact that Congress amended the ADA to reject an interpretation of the ADA not aligned with congressional intent demonstrates it is likely it would have done so for the ADA’s causation standard if the courts in applying the motivating factor standard were applying the wrong standard. That they did not do that indicates at least implicit acceptance of the motivating factor standard.
10. While the ADA does not explicitly incorporate §2000e-2, it does incorporate §2000e-5. Further, §2000e-5(g)(2)(B) specifically refers to the motivating factor standard. Interpreting the ADA to require a but for standard of causation, renders that provision irrelevant and superfluous. A statute need to be construed so that it’s effect given to all of its provisions so that no part of it is inoperative, superfluous, void, or insignificant.
11. Nothing indicates that Congress chose not to incorporate §2000e-2 into the ADA with the intent for a stricter causation standard to apply. Indeed, if that had been congressional intent, it would have omitted §2000e-5(g)(2)(B). It also would surely have explained why it was making such a significant change and Congress did not do so.
12. The ADA’s legislative history makes clear that Congress intended claims under the ADA to continue to have the same causation standard claims under Title VII. More particularly, when Congress enacted the ADA, it intended for the ADA’s remedies to parallel Title VII’s remedies because the remedies should remain the same for minorities, women, and for persons with disabilities.
13. A House report explained that if the powers, remedies, and procedures, for title VII change, then identical changes under the ADA for persons with disabilities will also be made. That is, by retaining the cross reference to Title VII the committee’s intent was that the remedies of Title VII currently and as amended in the future will be applicable to persons with disabilities.
14. Since the Rehabilitation Act incorporates the ADA’s causation standard, the motivating factor standard applies to plaintiff’s claims.
15. Plenty of evidence exists that plaintiff’s hearing loss motivated the adverse decision, in this case termination.

III

Takeaways

1. A question not considered by this case is whether the Rehabilitation Act outside of employees of the federal government, even applies to employment situations. We discussed that question in this blog entry. Clearly, over the years, the courts have held that it does, but it isn’t a settled question. The plain language of 29 U.S.C. §794(d) would seem to suggest that the Rehabilitation Act does apply to employment outside of federal employees.
2. I don’t think it is particularly controversial to say that when it comes to employment cases that the causation standard under the ADA and the Rehabilitation Act are the same. The controversy is over just what “on the basis,” means.
3. If but for causation is not solely by reason of causation, then what is it? Could it be “necessary cause,” which we discussed here?
4. In employment discrimination matters, invariably there are more than one cause associated with the adverse decision. In a but for jurisdiction, what do you do then? This happens all the time in tort law. When I was teaching tort law to paralegals and got to this concept, I would mimic the scarecrow from the Wizard of Oz. When you have more than one cause, but for becomes extremely problematic. In tort law, the courts over the years fix that problem by saying where more than one but for cause exists, substantial factor is the principal that comes into play. Perhaps, that is what the courts mean by but for causation even if they are not using the term substantial factor. Since substantial factor is not being used where more than one cause exists, it is very unclear just what but for means. Maybe, it means, “substantial factor?” Maybe, it means, “necessary cause?” Maybe, none of those are accurate.
5. Nassar, as we discussed here, clearly states that retaliation is one thing but status-based discrimination is something else. Accordingly, that presents a strong opening to argue that mixed motive is in play for non-retaliation ADA claims.
6. Regarding legislative history, you really have to dig for it (I mean really dig), but legislative history discussing “on the basis,” does exist that says it was congressional intent in amending the ADA to retain McDonnell Douglas when it comes to proving up ADA discrimination. You can’t retain McDonnell Douglas without engaging in mixed motive analysis.
7. Title I and Title III both use “on the basis,” language for causation. Title II uses by reason of. The Rehabilitation Act uses, “solely by reason of.” If the majority is to be believed, you wind up with different causation standards across the Titles of the ADA. That is, under Title II of the ADA, you would have a more generous causation standard for plaintiffs than you would under Title I and Title III because Title II uses “by reason of,” and Rehabilitation Act uses, “solely by reason of.” This doesn’t make a lot of sense.
8. The problem with the but test for is multiple causation, which is always present in employment discrimination matters. If courts are going to continue to apply this test in the future, more clarity is needed. It will be interesting to see whether they adopt necessary cause or substantial factor in those situations. Ultimately, either Congress or the Supreme Court and then possibly Congress again are to have to figure this out. The 2020 elections may have a lot to do with this.
9. The court finds no reason to distinguish between “because of,” and, “on the basis of.” That doesn’t make a lot of sense to me because why would Congress change the terminology if the change was superfluous or meaningless?
10. Substantial factor and necessary cause would both allow for a cat’s paw theory of liability.
11. Hard to understand how getting rid of “because of,” in favor of “on the basis of,” somehow leads to the conclusion that the amendments to the ADA imposed a higher causation standard than what had been previously the case. As the dissenting judge noted, the amendments to the ADA were designed to overrule a whole bunch of cases from the Supreme Court severely narrowing the ability of persons with disabilities to be protected under the ADA. Making the causation standard a higher bar for plaintiffs than what had been previously would contradict those efforts. Also, Congress was quite clear in the ADA to make clear that the Supreme Court got some of the cases, the Sutton trilogy and Toyota Motor, So, why wouldn’t have Congress been clear that the causation standard was also out of whack?
12. When the causation issue gets to the Supreme Court, the key is going to be whether the court as configured at that time will go off on the distinction Justice Kennedy made in Nassar about status-based discrimination. If so, then mixed motive is in play. Also, if the Supreme Court decides to go with but for, hopefully it will clear up what that means when there is multiple causation involved, such as by adopting a substantial factor test or a necessary cause test.

IV

Just In

Yesterday, the United States Supreme Court granted cert. in three cases discussing whether LGT individuals are protected under title VII of the Civil Rights Act. We have discussed all of that here and here. With respect to transgender, I am going to go out on a limb here and say that it won’t even be close that transgender is protected under title VII of the Civil Rights Act because Price Waterhouse prohibits gender stereotyping. By definition, discrimination against a transgender individual involves sexual stereotyping.

With respect to sexual orientation, that is going to be a much more difficult case. If the configuration of the court remains the same, I would expect it to be a 5-4 decision with Justice Kavanaugh being the swing vote (Chief Justice Robert dissented in both Obergefell and Windsor). Justice Kavanaugh is very proud of the diversity of his clerks. One also has to wonder what impact, if any, the confirmation hearings will have on any of this. Finally, I did a Westlaw search, and my search did not reveal any cases that Judge Kavanaugh had with respect to LGBT rights while on D.C. Circuit (other bloggers are reporting there are indeed none).

So, since the decision on these cases will come down next term, expect it to be a huge campaign issue. It is entirely possible that the decision in these cases could come down just a few months before 2020 elections. Also, based upon the current case law, it is entirely possible that by the end of these decisions, transgender individuals will be protected under title VII but lesbian and gay individuals will not be. In that case, if there is a Democratic wave in 2020 (Buttigieg presidency too?), which there may not be, expect Congress to specifically amend title VII of the Civil Rights Act to include LGBT explicitly.