but for

Just Because §1981 Causation is But For Causation, that Does NOT mean ADA causation is But For

March 29, 2020 by William Goren 2 Comments

This week’s blog entry is an update on a previous blog entry and a discussion of the recent Supreme Court decision in Comcast, which involves the causation standard for §1981. Of course, what we are interested in is whether Comcast necessarily means the Supreme Court will decide but for causation is the standard for ADA matters outside of the retaliation and association discrimination contexts. I am already seeing the defense bar using this case in their briefs to say such is the case. Suffice to say, I don’t agree, and we will explore why that is the case below.

With respect to the update on the previous blog entry, the Eighth Circuit recently decided Harris v. Union Pacific Railroad Company. I am not going to spend a lot of time on Harris in this blog entry. However, a couple of things are worth pointing out with respect to Harris. The case was about whether the District Court properly certified a class action. The majority held that the District Court did not properly certify the class action because there were too many individual differences among disabilities. They ignored the issue of how Union Pacific Railroad uses a 1% rule to justify restrictions. The concurring opinion by Judge Kelly agrees that the class action was mistakenly certified with respect to all individuals with disabilities. However, Judge Kelly spent quite a bit of time on the 1% likelihood to get a disability rule saying that a class action would properly have been certified if the class action was restricted to people in individual job classes rather than to persons with disabilities as a whole. This case bears following because of the 1% rule being allowed as something that Union Pacific Railroad might, and it’s clear from the majority opinion the word is “might,” be able to defend.

With respect to Comcast Corporation v. National Association of African-American Owned Media and its significance for ADA causation, we are going to attack it in the following way: 1) The part of Justice Gorsuch opinion exploring §§1981-82; 2) the part of Justice Gorsuch opinion exploring why title VII motivating factor test does not get imported into §1981; 3) my counterpoint to the part of Justice Gorsuch’s opinion with respect to why the §§1981-82 discussion is distinguishable when it comes to the ADA; 4) my counterpoint/agreement to the part of Justice Gorsuch’s opinion with respect to his discussion of title VII; and 5) my thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Justice Gorsuch’s Reasoning Exploring §1981 and §1982

Looking to §1981 particular statute’s text and history, the court saw no evidence of an exception to the but for causation rule.
Citing to Nassar, which we discussed here, it is textbook tort law that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but for causation.
The ancient and simple but for common law causation test supplies the default or background rule against which Congress is normally presumed to have legislated against when creating its own new causes of action, including federal antidiscrimination laws like §1981 and the Age Discrimination in Employment Act.
Justice Gorsuch doesn’t doubt that most rules have their exceptions. However, taken collectively, clues from the statute’s text, its history, and Supreme Court precedent persuade the court that §1981 follows the general rule.
1981 promises that all persons have the same right to make and enforce contracts, to sue, be parties, and give evidence as is enjoyed by white citizens. While the statute’s text does not expressly discuss causation, this language is suggestive and fits naturally with the ordinary rule that a plaintiff must prove but for causation. That is to say, if the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the same legally protected right as a white person.
It is the Court that created a judicially implied private right of action, doing so for the first time in 1975.
As time has gone by, the Supreme Court has come to appreciate that private rights of action to enforce federal law must be created by Congress and that providing a cause of action where statute has not created them is a proper function for common law courts but not for federal tribunals.
In the past, terms in the statutes such as “on account of,” and “by reason of,” have often been held to indicate a but for causation requirement.
The common law in 1866 often treated showing but for causation as a prerequisite to a tort suit.
The term “on the basis of race,” is strongly suggestive of a but for causation standard.
Nothing in the previous §1981 decisions of the Supreme Court even gesture towards the possibility that the but for rule of causation sometimes might be overlooked or modified in the early stages of the case.
With respect to §1982, the court has consistently held that “because of,” language is but for causation.

Justice Gorsuch on Why Title VII’s Motivating Factor Test Should Not Be Imported into §1981

A critical examination of title VII’s history reveals more than a few reason to be wary of any invitation to import a motivating factor test into §1981.
Motivating factor was first adopted in 1989 in the case of Price Waterhouse v. Hopkins, which can be found here.
In the Civil Rights Act of 1991, Congress provided that a title VII plaintiff who shows that discrimination was even a motivating factor in the defendant’s challenged employment decision is entitled to declaratory and injunctive relief.
A defendant may still invoke a lack of but for causation as an affirmative defense, but only to stave off damages and reinstatement, not liability in general.
Title VII was enacted in 1964.
Congress replaced the motivating factor test of the Supreme Court with its own version two years later.
1981 dates back to 1866 and has never said a word about motivating factors.
Title VII and §1981 are two statutes with two distinct histories, and not a shred of evidence that Congress intended to incorporate the same causation standard.
At the same time Congress added the motivating factor test to title VII, Congress also amended §1981 and did not even whisper about motivating factors.
Like the motivating factor test, McDonnell Douglas is a product of title VII practice and does not remotely suggest that it applies to §1981.

III

Counterpoint to Justice Gorsuch’s Opinion Discussing §§1981-82 in Terms of How It Fits or Not with the ADA.

Justice Gorsuch says that looking to §1981 statute’s text and history, no evidence of an exception exists. This is not the case with the ADA. For example, if you look at the legislative history of the amendments to the ADA, the term qualified was retained in order to preserve the McDonnell Douglas paradigm.
Justice Gorsuch cites to Nassar numerous times in the opinion. Justice Gorsuch also cites to Gross. In Gross, the Supreme Court held that but for applies to Age Discrimination in Employment Act cases. Again, as we have discussed previously, that case is also distinguishable with respect to ADA causation. With respect to Nassar, we said that the case was a huge victory for both plaintiff and defense lawyers. With respect to defense lawyers, they get but for causation when it comes to retaliation. However, Justice Kennedy made it quite clear that status based discrimination, which is disability discrimination outside of retaliation and association, does allow for motivating factor.
Justice Gorsuch says that clues from the statute’s text, its history, and precedent persuades him that §1981 follows the general rule. That doesn’t hold up with respect to the ADA for reasons we will see in a minute.
The ADA specifically authorizes private lawsuits to enforce disability discrimination unlike §1981.
While it is true that the Supreme Court has held that “on account of,” and “by reason of,” indicate but for causation, you can’t make that leap with respect to the ADA. For example, the ADA is based upon §504 of the Rehabilitation Act of 1973. That particular statute, 29 U.S.C. §794, says that causation is, “solely by reason of.” However, causation under title II of the ADA is “by reason of,” and Congress is presumed to have known that at the time title II was enacted, especially since the Rehabilitation Act was enacted in 1973. There has to be a reason why Congress did not import the word “solely,” into title II of the ADA. A plain reading of the two statutes leads to the conclusion that “solely by reason of,” and “by reason of, must be different causation standards. In fact, many cases across the country have so concluded.
Similarly, when it comes to association discrimination and retaliation under the ADA, the relevant ADA statutory provisions are quite explicit that causation is “because of.” However, when it comes to disability discrimination outside of association discrimination and retaliation discrimination, the terms used are “on the basis of” (title I and title III), and “by reason of” (title II). Congress clearly could have adopted the same terminology as it did for association and retaliation claims but it did not.
The ADA was signed into law in 1990, one year after McDonnell Douglas.
Title I of the ADA specifically hooked into title VII of the Civil Rights Act for its remedies.
While title II of the ADA hooks into title VI of the Civil Rights Act for its remedies, one is drawn to the fact that the word “solely,” is completely missing from ADA causation and it appears for Rehabilitation Act causation. As already mentioned, the ADA was 1990 and the Rehabilitation Act was 1973.
The ADA is more than just a typical Civil Rights Act statute. Unlike §1981 and §1982, the ADA imposes upon covered entities the duty to make reasonable accommodations/modifications in order to get a qualified person with a disability to the same starting line as a person without a disability. That affirmative duty fundamentally changes any causation calculus with respect to an analogy to §1981-82.
Absolutely true that but for causation is ancient. However, it is also ancient that where there is more than one but for causation, substantial factor or some test like that comes into play.

Counterpoint/Agreement with Justice Gorsuch’s Discussion on Title VII.

Title VII was enacted in 1964.
Justice Kennedy in Nassar specifically states that status based discrimination claims are subject to a mixed motive analysis. Disability discrimination outside of association discrimination and retaliation, is status based discrimination.
As mentioned above, evidence does exist that Congress intended to incorporate motivating factor into status based disability discrimination claims. Again, as mentioned above, legislative history exists that the word “qualified,” was specifically retained in order to preserve McDonnell Douglas as part of ADA discrimination cases.
Congress did amend the ADA in 2009. That amendment did a lot of things, particularly with respect to definitional items and the overturning of Supreme Court cases. In particular for purposes of this blog entry, it got rid of the term “because of,” that appeared in the ADA as enacted in 1990 and replaced it with “on the basis of,” when it came to causation under title I of the ADA. Why would Congress do that if but for and on the basis mean the same thing? Interestingly, the amendments did not change the causation terminology for title II (see discussion above), and for title III.
McDonnell Douglas, as Justice Gorsuch says, is a product of title VII practice, and the ADA is a civil rights statute. In fact, with respect to title I, remedies are specifically linked to title VII.

Thoughts/Takeaways

You can expect that every single ADA case from here on out will be litigating over the applicability of Comcast to ADA matters.
You can also expect that the Supreme Court will have to address this issue if Congress doesn’t do it first after the 2020 elections, depending upon results of course.
The Supreme Court has given conflicting signals on causation. On the one hand, Justice Kennedy, as noted above, made it quite clear that status based discrimination, which disability discrimination is outside of association and retaliation, is motivating factor. On the other hand, in the case we discussed here, Justice Alito seemed to walk that back.
Justice Gorsuch, as we discussed here, has a record of being open minded to the rights of persons with disabilities when he was on the lower courts. Justice Roberts while being a person that favors corporations quite a bit, has also been very open minded to persons with disabilities (such as here for example).
Does motivating factor actually help plaintiffs? I once had a plaintiff lawyer tell me that it doesn’t. He thought that juries don’t understand it. However, that lawyer most certainly seems to be in the minority. If you are on the plaintiff side, which I am not always, I sure hope you read this blog entry.
While it is absolutely true that “but for,” causation is ancient, it is also true that but for cases often have more than one “but for,” cause. Every one of us who has gone to law school knows that where there is more than one but for cause, but for causation turns into substantial factor, and many ADA cases involve more than one cause. Assuming a court goes with “but for,” a plaintiff attorney might also argue substantial factor where more than one cause exists. That is not exactly the same as motivating factor, but it’s close (see this blog entry for example).
You can also expect in light of this decision a lot more litigation on whether the evidence involves direct evidence or indirect evidence. In the case of direct evidence, you come much closer to “but for,” causation than you do with respect to indirect evidence. If causation is “but for,” what does that even mean for McDonnell Douglas and direct evidence? It will create a mess. Will that lead to replacing direct and indirect evidence with convincing mosaic, such as we discussed here?
Currently, the two hottest areas of ADA jurisprudence our Internet accessibility and service animals. You can now expect causation to join that category.

Interactive Process and Essential Functions of the Job

February 10, 2020 by William Goren 2 Comments

Today’s case is a twofer. That is, we are going to talk about two different cases, both dealing with the interactive process and essential functions of the job. The first case is an unpublished decision from the 11^th Circuit, Kassa v. Synovus Financial Corporation, decided February 3, 2020. The second case is Seward v. Roy City decided by the United States District Court for the District of Utah on January 22, 2020. As usual, the blog entry is divided into categories and they are: Kassa facts; Kassa court’s reasoning; Seward facts; Seward court’s reasoning; and thoughts/takeaways on both cases. Of course, the reader is free to concentrate on any or all of the categories.

Kassa Facts

Plaintiff began working for the defendant as a lead network support analyst in the network operations center during night and weekend shifts. He has bipolar disorder and also suffers from intermittent explosive disorder. Accordingly, he told his supervisor about his disorders and that he would sometimes get angry or upset. He also told his supervisor that he was able to control his anger if he took his medicine and could take short breaks. The supervisor granted his request to take a short break when he got frustrated so long as his area was covered and he could be reached if necessary. That system worked fine. However, in 2016, defendant restructured and his department was outsourced to a third party vendor. Since plaintiff had quite a bit of technical expertise, the defendant wanted to retain plaintiff’s services and transferred him to the automated teller machine team. That team was responsible for handling customer service calls about issues with automatic teller machines. Once plaintiff learned that his position would involve answering customer service calls from both technical and non-technical personnel, he spoke to his senior director and to a human resources manager about his concern that he might lose his temper while talking to someone on the phone as he had a condition where he couldn’t always control what he said. Accordingly, it was not a good idea to have him answering phones. Plaintiff asked the senior supervisor if he could take customer service calls only from technicians, work nights, work from home, or could take a short break when he was having an episode. None of those requests were granted. Of course, plaintiff did indeed have episodes and in July 2017, his employment was terminated after plaintiff made another rude and unprofessional comment during customer service call. After filing with the EEOC, plaintiff sued the defendant alleging failure to provide a reasonable accommodation and for retaliation.

Kassa Court’s Reasoning

To establish a prima facie case of discrimination under the ADA, plaintiff must show he is: 1) disabled; 2) a qualified individual; and 3) that he was subject to unlawful discrimination because of his disability.
The essential functions of the position are the fundamental job duties of the position an individual with a disability is actually required to perform. The court then proceeds to list out all the EEOC factors and EEOC situations going into deciding whether a job function is essential.
The District Court got it right when it came to deciding that situations answering customer service calls was an essential function of plaintiff’s job on the ATM team. There really wasn’t any dispute on that point from either the plaintiff or the defendant.
An accommodation is reasonable only if it enables the employee to perform the essential functions of the job.
The employee has the burden of identifying accommodations and demonstrating that it is reasonable.
Plaintiff brought forth enough evidence to establish his request to take short breaks was a reasonable one. After all, he did precisely that in the job he was in prior to being transferred. Also, plaintiff’s supervisor for his original job testified that he generally permitted his customer service employee to take breaks when they got frustrated.
Plaintiff testified that when he transferred to the new team the accommodations simply stopped.
An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.
With respect to accommodation requests of not having to answer all calls, working from home, and working at night, those requests were not reasonable in light of the facts put forward by the defendant.
A retaliation claim cannot duplicate a failure to accommodate claim.
So, the 11^th Circuit vacated the District Court’s summary judgment on plaintiff’s failure to accommodate discrimination claim with respect to his request to take short breaks and remanded for further proceedings. They affirmed summary judgment on the remaining failure to accommodate claims as well as the retaliation claim.

III

Seward Facts (taken directly from opinion)

Seward worked for the Roy City Police Department from April 2001 until May 2015. During his time with the police department, he concurrently served with the United States Air Force Reserve. As a part of his duties with the Air Force Reserve, he was deployed to Afghanistan from February 21, 2014 until October 31, 2014. While in Afghanistan, he sustained an injury to both of his knees.

Upon Seward’s return from Afghanistan, he engaged in full active duty with Roy City until the condition of his knees worsened, mandating knee surgery in March of 2015. Seward took thirty days of unpaid leave to recover, and then was placed on light duty with Roy City. On April 15, 2015, Seward submitted a letter from his surgeon, Dr. Thomas, requesting an extension of light duty for an additional four weeks. Roy City granted the extension of light duty. The letter stated that Dr. Thomas anticipated Seward returning to “Full Duty in 4 weeks as police officer.”

In May, acting Roy City Police Chief Calcut asked Seward for an update as to when Seward could return to full active duty. On May 11, 2015, Seward submitted a second physician’s note recommending three additional months of light duty. The second note also stated there would be a “Follow up with doctor in: 4 wk(s).” After reviewing the letter, Calcut informed Seward that he was “good to go.” Seward understood from this statement that Calcut had approved his request for an extension of his light duty assignment. On May 27, Seward submitted a third doctor’s note stating that he was able to carry a firearm and drive a police vehicle and that he should follow up with his physician “as needed.”

On May 29, 2015, Roy City asked Seward to meet with human resources to fill out Family and Medical Leave Act (FMLA) paperwork. During that meeting, the city told Seward to call Dr. Foot to schedule a physical within the next two weeks. Seward was informed that he must pass a fit-for-duty examination in that time period in order to return to his job as a police officer. He was then sent home on unpaid leave.

Seward believed that he could not pass a physical within the allotted time period and did not call Dr. Foot. Instead, he submitted a retirement letter on June 12, 2015. Seward then sued Roy City, asserting three causes of action: (1) disability discrimination in violation of the ADA, (2) disability discrimination in violation of the Rehab Act, and (3) failure to engage in the interactive process or make a reasonable accommodation in violation of the ADA. Roy City moved for summary judgment on all three claims. Seward stated that he intended to abandon his first two claims but argued that summary judgment was not appropriate for his third claim.

Seward Court’s Reasoning

An available claim under the ADA is the employer failed to engage in an interactive process to accommodate a person’s disability.
Federal regulations implementing title I of the ADA envision an interactive process requiring participation by both parties.
The interactive process begins when an employee provides notice of a request for an accommodation.
One notice is given, both parties have the obligation to proceed in a reasonably interactive manner to determine whether reasonable accommodations can be granted.
A plaintiff bringing a failure to accommodate claim must show: 1) that he or she is a qualified individual with a disability; 2) that the employer was aware of the disability; and 3) that the employer failed to reasonably accommodate the disability.
In a footnote, the court noted that the 10^th Circuit has granted a petition for an en banc rehearing to review whether an adverse employment action is a requisite element for failure to accommodate claims under the ADA. Since that has not been decided yet, the court followed existing precedent, which we discussed here, that an adverse employment action is required.
A temporary reprieve from an essential function, such as a leave of absence or light duty assignment, for treatment of recovery from an injury can be a reasonable accommodation providing certain circumstances are met: 1) the employee provides an estimated date when he or she can resume his or her essential duties; and 2) the request for leave or modified duties must assure the employer than an employee can perform the essential functions of his or her position in the near future.
The letter furnished by the plaintiff from his surgeon recommended that the plaintiff be limited to light duty work for a period of three months. Accordingly, the clear implication of that letter is that the light duty restriction would be lifted at the end of the three month period. So, that letter necessarily provides a projected date for the defendant as to when the plaintiff could resume his essential work duties.
A failure to engage in the interactive process is a failure to make reasonable accommodations.
Interactive process includes good-faith communication between the employer and the employee. A lack of good faith can be demonstrated by the party obstructing or delaying the interactive process or by the party failing to communicate with respect to starting or responding to the interactive process.
While requesting an update on medical information from an employee is reasonable, giving the employee an ultimatum is not. Here, plaintiff produced evidence the defendant gave him an ultimatum where he either had to pass a fitness for duty test within two weeks or be terminated. An all or nothing ultimatums from an employer ending the opportunity for any possibility of reasonable accommodation is not the flexible and informal process mandated by the ADA.
The 10^th Circuit liberally views what an adverse employment action is. In the 10^th Circuit, it is more than just monetary losses. The United States Supreme Court has held that a jury can reasonably conclude that a suspension without pay is an adverse employment action. Here, plaintiff presented evidence that he was placed on unpaid leave and then given the ultimatum. Accordingly, that suffices for an adverse action.

Thoughts/Takeaways on Both Cases

I am still seeing a lot of confusion about the prima facie case for discrimination under title I of the ADA. That is, I still see too many courts talking about the standard of causation being, “because of his disability.” That isn’t the standard. The statute, 42 U.S.C. §12112, specifically says the standard is, “on the basis of.” Further, we have talked about cases, such as here, strongly implying if not holding, that the standard outside of the retaliation context is not because of (whether that be “but for,” or sole cause).
You most certainly can look at all the factors EEOC lays out plus the additional situations they mention to determine what are the essential functions of a particular job. Keeping it simple, look to what is fundamental to carrying out those job duties. Don’t forget that the standard is whether a person can carry out those essential job duties with or without reasonable accommodations.
Not unusual to see cases saying that the employee had the burden of identifying accommodation and demonstrating that the accommodation is reasonable. That becomes a particular issue when it comes to reassignment as a reasonable accommodation, which we have discussed here.
If it ain’t broke, why fix it? I can’t tell you how many times I see a new supervisor with a system already working blow the whole thing up. That is only a recipe for litigation. If an accommodation is working, keep letting it work.
“An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.” This statement from Kassa raises the question of whether the 11^th Circuit would require an adverse action for failure to accommodate claims. The 10^th Circuit is quite liberal as to what an adverse action is and may even soon get rid of the requirement altogether in failure to accommodate cases.
Failure to accommodate claims are fine, but a retaliation claim has to be distinct from the failure to accommodate claim.
With respect to what the interactive process should look like, this blog entry addresses that question.
Magic words are not required to start the interactive process.
Will definitely be following what the 10^th Circuit does in Exby-Stolley. It will not surprise me at all to see a Circuit Court split develop on this question of whether failure to accommodate claims require an adverse action.
Courts outside of the Seventh Circuit are tending to be flexible with respect to extended leave as a reasonable accommodation. The general trend is extended leave is okay where the employee can provide an estimated date in the near future for his return. In the District Court of Utah, three months was reasonable. Again, jurisdictions are going to vary on how to deal with extended leave beyond the FMLA leave.
An ultimatum can be construed as blowing up the interactive process.
An employer is not required to create light-duty positions if they don’t already have one.
Don’t forget, as we discussed here, that reassignment can be a reasonable accommodation.
The 11^th Circuit said in Kassa the following: “an accommodation is reasonable only if it enables a person with a disability to perform the essential functions of the job.” Note, what the court is not saying. It is not saying that the accommodation must be related to the essential functions of the job. Rather, it is saying that the accommodation must enable a person to perform the essential functions of the job. That language is Exhibit 1 for any plaintiff lawyer saying that a bona fide service dog is always a reasonable accommodation because without it a person will not be enabled to perform the essential functions of the job. So, as a matter of preventive law, allow bona fide service dogs for your employees assuming proper documentation.
Most of the cases I am now seeing are using the term, “disabled.” I still prefer people first language myself.

Okay Boomer at the Supreme Court and What Does That Have to do with the ADA

January 20, 2020 by William Goren Leave a Comment

I am not sure about blog entry times for the next couple of weeks. Next week, I will be attending and speaking at the Accessibility Professionals Association conference in Round Rock, Texas. Sometime within the next two weeks, I will be testifying as an expert witness in a trial in Houston. So, not sure when or if blog entries will be posted over the next two weeks.

Turning to today’s blog entry, the case of Babb v. Wilkie was recently argued before the United States Supreme Court. The legal blogosphere lit up when Justice Roberts as part of oral argument asked about whether “okay boomer,” was evidence of age discrimination. Even before this argument, back in November of 2019, my colleague Robin Shea had discussed here whether “okay boomer,” was something that was okay within the workplace. When she wrote that blog entry, I back channeled with her with respect to not being a boomer even though I was born in late 1960. I have always preferred myself to be thought of as a bridge to Generation X or as a Gen X and not as a boomer. Robin simply wouldn’t back down. She finally pacified me by saying that putting all boomers together in one category is a mistake. Rather, it makes sense to classify boomers depending upon the TV shows that had a profound influence at the time. So, Robin said she had previously written that early boomers can be classified as Howdy Doody boomers, middle boomers can be classified as Flintstone boomers, and late boomers can be classified as Scooby Doo boomers. I think she may be onto something. I absolutely adored Scooby Doo. I also watched the Flintstones but definitely preferred Scooby Doo over the Flintstones. All that said, I’m still not sure I am not right to think of myself as a bridge to Generation X (I have my friend and legal marketing guru Jeremy Persin), to thank for that or just as Generation X. After all, my markers include but are not limited to: walk on the moon; Nixon’s resignation; and Reagan’s election in 1980. None of those are boomer markers. Finally, I have a 15-year-old daughter, and she and I have had this conversation 😊So, sign me as Scooby Doo boomer, bridge Gen X or early Gen X but NOT boomer.

Turning to the oral argument in Babb v. Wilkie, we get the following:

Everybody agrees that with respect to reinstatement and backpay, “but for” causation is the standard. The question is what is the standard for injunctive relief and under what laws. The agreement between the parties on this question was actually pointed out by Justice Kavanaugh. In response to his question, the attorney responded that a different law might be involved with respect to injunctive relief and other prospective relief, i.e. the civil service protections. It turns out that Justice Kavanaugh may have been onto something because the Supreme Court has now asked for additional briefing on what other laws not containing but for causation might be applicable to the case.
Justice Breyer very clearly is of the opinion that motivating factor is in play with respect to injunctive and other prospective relief. Justice Breyer was able to get the attorney for the plaintiff to basically admit that what the plaintiff was really after was the ability to use motivating factor when it comes to injunctive and prospective relief.
Justice Kagan, Justice Ginsburg, and Justice Sotomayor also seem to be very much on board with Justice Breyer’s motivating factor view.
Justice Roberts by raising okay boomer was raising it as an attempt to discuss and flesh out any motivating factor applicability.
Justice Alito kept referring to a cake batter that has some egg in it when it was supposed to have no eggs in it as an attempt to discuss any factor causation. He did say that, “he had a terrible time getting the solicitor’s argument into the statutory language.” He also wondered about the practicalities of a situation where but for causation was required for reinstatement and backpay but not required for injunctive and other prospective relief. The plaintiff attorney responded to that by saying that injunctive and prospective relief are oftentimes extremely critical in employment discrimination cases.
Justice Sotomayor had no problem with a bifurcated approach.
Justice Thomas was silent but he did write Gross, which said that ADEA in the private sector was but for causation. Also, if you have not read the Enigma of Clarence Thomas yet and are interested in Justice Thomas’s judicial philosophy, I would strongly encourage you to do so. Gross and that book would suggest that Justice Thomas would likely find but for causation across the board.
Justice Gorsuch implicitly wondered out loud whether Gross was decided correctly in the first place.
The public sector ADEA statutory language is very interesting as it says that a person, “shall be free from any discrimination based on age.” So, a lot of argument ensued over whether shall be free from any discrimination modified the rest of that statutory section so as to allow for motivating factor. Interesting, that “on the basis,” did not get a lot of play in the oral argument as to whether that language by itself justified motivating factor.
How does this all relate to the ADA? 1) both statutes use, “on the basis” language (the ADA uses it in title I and in title III); 2) only the public sector ADEA statute uses “shall be free from any discrimination…,” language. That is, you do not find any such language like that in the causation sections of title I, title II, or title III of the ADA (42 U.S.C. §§12112, 12132, and 12182); and 3) as we have discussed here and here, open question as to what “on the basis,” means with respect to whether motivating factor is in play under the ADA.
It doesn’t surprise me at all that the Supreme Court asked for additional briefing on whether other non-but for causation laws applied in light of how the oral argument went. How that briefing affects the final vote total is anybody’s guess.
I have absolutely no idea as to how this case is going to go when it comes to the final decision. Depending upon how that decision is written, there could be significant implications with respect to causation under the ADA, especially titles I and title III.