motivating factor

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.

Failure to Accommodate, Direct Evidence, and Adverse Action

December 10, 2019 by William Goren Leave a Comment

Today’s blog entry is going to be my last substantive blog entry of the year. My daughter is on break the last two weeks of December, and just about everybody takes the Christmas season off anyway. The very last blog entry of the calendar year is when I traditionally do my top 10 Understanding the ADA blog entries of the year. I have not been following what is the top 10 from month to month. So, I am really curious to see how that is going to work out.

Today’s blog entry is actually on a case that my fellow bloggers have blogged on before. This particular case involves blogging on a case that my colleague Jon Hyman blogged on previously here. The case is Morrissey v. Laurel Healthcare Company, a published decision from the Sixth Circuit decided on December 3, 2019. Jon did an excellent summary of the facts and his takeaways are excellent as well. I thought I could bring a different spin to his blog entry and so here goes. As usual, the blog entry is divided into categories and they are: court’s reasoning; and thought/takeaways. I am going to dispense with the facts except as far as they are part of the court’s reasoning because Jon already covered them in brief in his blog entry.

Court’s Reasoning

The McDonnell Douglas test is not necessary where there is direct evidence because defendant has already admitted the wrongdoing. Where direct evidence exists, the factfinder is not required to draw any inferences to conclude that disability was at least a motivating factor.
Since not making reasonable accommodations is listed in the ADA’s definition of disability discrimination, claims premised upon an employer’s failure to offer reasonable accommodation necessarily (emphasis mine), involve direct evidence.
Under the direct evidence framework, a plaintiff has the burden of establishing: 1) he or she is a person with a disability; and 2) that he or she is qualified/otherwise qualified for the position despite his or her disability: A) without accommodation from the employer; B) with an alleged essential job requirement eliminated; or C) with a proposed reasonable accommodation.
With respect to this case, plaintiff alleged a failure to accommodate and a constructive discharge claim under the direct method and a retaliation claim under the indirect method.
The District Court erred in requiring plaintiff to prove she suffered an adverse employment action to pursue a claim for failure to accommodate. Under the direct evidence test, a plaintiff need not prove he or she suffered an adverse employment action separate from the failure of the employer to reasonably accommodate the employee. In other words, failing to make a reasonable accommodation falls within the ADA’s definition of discrimination and that necessarily means an employer’s failure to offer a reasonable accommodation involves an adverse action.
Of course, to establish a claim for failure to accommodate, a plaintiff has to show that he or she has a disability first.
A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or is regarded as having such an impairment. 42 U.S.C. §12102(1)(A)-(C).
The amendments to the ADA defined major life activities in very broad terms. 42 U.S.C. §12102(2).
The amendments to the ADA also makes clear that the definition of a person with a disability in the definition of substantially limited are to be construed broadly in favor of expansive coverage. 29 U.S.C. §12102(4)(A),(B); 29 C.F.R. §1630.2(j)(1)(i).
Under 29 C.F.R. §1630.2(j)(1)(ii), determining substantial limitation mean comparing the person with a disability to most people in the general population. That is not a demanding standard and in general, a plaintiff does not need to submit scientific, medical, or statistical proof to establish such a limitation.
The amendments to the ADA overruled the Toyota Motor standard that an impairment had to prevent or significantly or severely restrict a major life activity to be substantially limiting.
The EEOC removed from the text of its regulations a discussion of the major life activity of working because Congress intended for courts to analyze whether plaintiff can perform certain jobs only when a plaintiff claims she is substantially limited from working but not for other major life activities. Also, no other major life activity received special attention in the EEOC regulations and with the expanded definition of major life activity in the ADA, the major life activity of working would only be used in very targeted situations.
Pre-2008 cases are not good law when it comes to determining whether a plaintiff is a person with a disability.
Numerous facts exists that plaintiff has a disability as defined by the ADA as amended, including: 1) plaintiff asserted she was substantially limited in her ability to walk, stand, bend, and lift repetitively due to scoliosis, bulging disc, Ehlers- Danlos syndrome, Buschkes-Ollendorf syndrome; 2) plaintiff never argued that she had a disability because of an inability to work and such an allegation is not necessary to her claim; 3) plaintiff did not have to tell her employer about her specific diagnosis; 4) plaintiff did tell her employer that she could not work more than 12 hours per shift because she suffered a disability as defined by the ADA as amended.
For an employer’s obligation to activate the duty to accommodate, the employee does not need to use the word “disabled,” rather the employer must know enough information about the employee’s condition to conclude that he or she is a person with a disability. Information that could help figure out whether a person has a disability under the ADA could include such things as a diagnosis, treatment plan, (severe symptoms,) and physician imposed work restrictions.
Medical records establish that the plaintiff suffered from disc disease.
Plaintiff submitted plenty of evidence to show that she was substantially limited in her ability to walk, stand, lift, or bend. In particular, after an 8 to 12 hour shift: 1) plaintiff had difficulty walking, standing, lifting, and bending; 2) plaintiff was in pain constantly and her nursing shifts made the pain worse; 3) plaintiff had severe pain in her buttocks and right leg and numbness and tingling in her feet; 4) plaintiff had so much trouble bending over that it was difficult for her to put on her underwear; 5) plaintiff’s daughter submitted an affidavit stating that plaintiff did not walk at all or walked with a slight hunch and a pained expression after completing a day of work; 6) plaintiff’s daughter also stated that plaintiff could not complete household chores requiring lifting, bending, or stooping after working.
Factual issues exist as to whether defendant regarded plaintiff as having a disability.
Defendant had a policy where it would not accommodate an individual with a disability unless the injury was job-related.
Plaintiff alleged that she requested moving to a unit that required nurses to work only eight hour shifts and that she requested to be moved to a casual status. If granted, she would not have had to work in excess of 12 hours. Plaintiff alleged that the defendant denied both requests.
Plaintiff’s personnel file had medical notes supporting her restrictions. She also repeatedly told her employer that she was under restrictions. For a time, the employer even honored the restrictions. So, plaintiff brought forth enough evidence to claim that she has a record of a disability under the ADA.
In short, plaintiff brought forth enough evidence to show that: 1) her employer had a blanket policy of denying accommodation for all non-work-related disabilities; 2) her employer knew that the plaintiff was under a 12 hour work restriction; 3) (employer knew that plaintiff had requested an accommodation); 4) her employer forced plaintiff to work beyond the restrictions on January 31, 2016, and attempted again to have her do so five days later.
Plaintiff asked her employer for an accommodation due to a disability, and her employer did not accommodate her. So, plaintiff was not required to establish anything more for her claim to be viable.
Defendant makes no argument that plaintiff’s proposed accommodation would impose an undue hardship.
The de minimis employment action defense does not apply to a failure to accommodate situation. Application of such a rule would not only be cruel, but it would contravene previous precedent from the Sixth Circuit as well as the ADA.
The constructive discharge claim moves forward because a disputed question of material fact exists over whether the plaintiff had a disability (see above paragraph). The constructive discharge claim also moves forward because a complete failure to accommodate in the face of repeated requests can suffice as evidence to show constructive discharge.
The employer cannot escape liability by arguing a blanket policy of denying accommodation for all non-work-related disabilities is ostensibly neutral. The court uses an interesting example of a school lacking an elevator for a teacher with mobility impairments to explain what it means. It then concludes that a defendant cannot refuse to provide a plaintiff with a reasonable accommodation and then argue the plaintiff did not qualify for her position because she cannot meet her job’s requirements without an accommodation.
The retaliation claim gets analyzed under the indirect evidence test. To establish retaliation the plaintiff has to show: 1) plaintiff engaged in activity protected under the ADA; 2) the employer knew of that activity; 3) the employer took an adverse action against plaintiff; and 4) a causal connection existed between the protected activity and the adverse action.
Constructive discharge qualifies as an adverse employment action and the record supports a finding that plaintiff was constructively discharged.

Thoughts/Takeaways

It doesn’t matter how a person becomes a person with a disability. I have seen employers think that it does. The very nature of the ADA makes it obvious that how a person becomes a person with the disability is absolutely irrelevant. It is great to see a court saying as much. Interesting that the court looked at it from the view of essential functions. It just as easily could have flat out said it doesn’t matter how a person becomes a person with a disability. Regardless, you get to the same place either way.
Under the court’s reasoning, failure to accommodate claims are analyzed under the direct evidence test, which means that it could be very difficult for defendants to prevail on summary judgment with respect to failure to accommodate claims.
Under the court’s reasoning, failure to accommodate claims do not require an independent adverse action. That is, the failure to accommodate is the adverse action.
This whole direct indirect evidence thing is very confusing, even for me. As we discussed here, the Seventh Circuit is more than ready to blow that whole analysis up completely.
This case is now the second time where I have seen a prima facie for a failure to accommodate claim talk about how a plaintiff can show that they could have performed a job with an essential job requirement eliminated. I’ve said before with respect to this element that I just don’t get it. The ADA does not require the elimination of an essential function of the job.
I’ve also said before that working is not a major life activity that should be used by plaintiffs except under extraordinary situations. The court here says precisely that. In fact, unless extraordinary situation exists, my view for years has been for a plaintiff to allege working as the major life activity is legal malpractice.
Magic words are not required as we have discussed here. All that is required is for the employer to have enough information about the employee’s condition to conclude that the employee has a disability. That is not a high standard.
When it comes to determining substantial limitation, the question is how does that person compare to most people in the general population.
If you have a policy setting up a distinction as to when you will accommodate based upon the origin of the disability, get rid of it.
De minimis employment action defense not available in the Sixth Circuit with respect to a failure to accommodate claim. Check your jurisdiction to see how it handles this question.
The reasoning of the court is such that it open the door to many more constructive discharge claim when a failure to accommodate is involved. The court uses the language “complete failure,” but the decision itself doesn’t seem to be talking about a “complete failure,” being necessary for a constructive discharge claim. Jurisdictions may vary on this.
Court says that retaliation claim can analyze under an indirect evidence test, though I don’t know why that would necessarily need to always be the case.
What Jon said in his blog entry on the case.
The decision is published.
The Sixth Circuit presumes in this case that motivating factor is the causation standard.
Not every court agrees that a failure to accommodate constitutes an adverse action. We discussed one such case here. So, check your jurisdiction on this. This also means a split now exist among the Circuits. Will that split result in Supreme Court review? If it does, I will have to do some serious thinking as to which way the court would go. Offhand, not clear to me at all.
Pre-2008 law discussing how to determine a disability is no longer good law.

Is Causation Under Title I But For Causation? Ninth Circuit Says Yes; I Say No

August 24, 2019 by William Goren Leave a Comment

Before starting on today’s blog entry, I do want to wish a speedy recovery to Justice Ginsburg. Regardless of your political views or your jurisprudential views, you can’t argue that Justice Ginsburg is not one of the legal titans of the late 20^th and early 21^st century. Wishing her a speedy recovery.

Today’s blog entry is a case that came down from the Ninth Circuit holding that causation for title I claims are, “but for.” We will explore the court’s reasoning, and then in the counterargument/thoughts section, I will proceed to tear that reasoning apart. Definitely, look for a petition for an en banc rehearing as a panel overrules prior Ninth Circuit precedent. The case of the day is Murray v. Mayo Clinic decided on August 20, 2019. The facts don’t really matter because causation is the question. What happened here was the plaintiff loses at trial. Plaintiff wanted a mixed motive instruction but got a but for instruction instead. Plaintiff appeals saying that instruction was in error. As usual, the blog entry is divided into categories and they are court’s reasoning and counterargument/takeaways. I imagine you will want to read the whole thing.

Court’s Reasoning

Motivating factor is irreconcilable with Gross, discussed by us many times previously, such as here, and Nassar, discussed here.
Title I of the ADA prohibits discrimination on the basis of disability.
In 42 U.S.C. §12117(a), only one of the cross-referenced sections references a causation standard. That standard references motivating factor but that in turn focuses on a section that doesn’t talk about disability discrimination at all.
The Supreme Court held in Gross that retaliation claims under the Age Discrimination in Employment Act were governed by a but for standard.
The Supreme Court in Nassar held that title VII retaliation claims are also governed by a but for standard.
After those two cases, Circuits have retreated from a motivating factor standard in ADA cases.
The motivating factor standard for causation is appropriate for employment discrimination claims under title VII.
The ADA does not contain any explicit motivating factor language.
Under Gross, “on the basis of disability,” indicates but for causation.
In the motivating factor section of the statute, disability is not mentioned. So, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope.
No meaningful textual difference exists between because of disability and on the basis of disability. The Second and Fourth Circuit found nothing in the legislative history indicating Congress intended to modify the ADA’s standard for causation.

Counterarguments/Thoughts

Both Gross and Nassar are easily distinguishable. In Gross, it was a retaliation claim under the Age Discrimination in Employment Act. Also, the Age Discrimination in Employment Act uses the term “because,” and not the term, “on the basis of.” Nassar was also a retaliation claim, this time under title VII of the Civil Rights Act. In that case, the Supreme Court specifically held that retaliation claims are governed by a but for standard. However, the majority opinion specifically noted that status based claims are not governed by that standard. Discrimination on the basis of disability is status based, and therefore, per Justice Kennedy, not subject to but for causation under Nassar.
It is incorrect that legislative history doesn’t exist as to why Congress went with “on the basis,” v. “because.” More on that in a minute. I can tell you as a former member of the Illinois Senate Democratic legal staff, legislators and their staff counsel don’t go changing words for the heck of it (unless it is a shell bill, which the amendments to the ADA clearly were not). If they change a word, there is an intent behind it. In fact, legislative history discussing why the change was made does exist. I am clueless as to why nobody is finding it. In particular, H.R. Rep. 110-730 at the discussion of, “Discrimination on the Basis of Disability,” says that the reason why “on the basis,” was inserted into the ADA was to ensure that the more direct language, structured like title VII placed the emphasis on the critical inquiry of whether a qualified person with a disability has been discriminated against on the basis of his or her disability and not upon whether a particular person was even a person with a disability, and therefore, subject to the protection of the ADA in the first place. Further, that same section of the House Report goes on to say that the term “qualified,” remains in the ADA because the House wanted to make clear that the burden shifting framework applicable to cases involving the indirect method of proof applies to the ADA. Of course, that burden shifting framework presumes motivating factor.
A motivating factor approach is consistent with achieving the purpose and findings behind the ADA in the first place as set forth in 42 U.S.C. §12101.
If I am the plaintiff, I am definitely petitioning for rehearing en banc for two reasons. First, a panel overrules a prior decision of the Ninth Circuit. In many Circuits, that automatically generates an en banc rehearing. Second, a strong argument exists, as mentioned above, that the Ninth Circuit panel here misinterpreted Gross and misinterpreted Nassar. It also did not look at relevant legislative history. Perhaps, the attorneys had not read my book as the legislative history discussion with respect to the change from “because,” to “on the basis of,” appears on pages 173-174 of Understanding the ADA, fourth edition. The burden shifting discussion in the House Report immediately follows the discussion of the change to “on the basis of,” from, “because of.”
Not all plaintiff lawyers are a fan of motivating factor. Some have told me that it is just too complicated. Juries are more likely to understand but for causation. Of course, the problem with but for is what happens when there is more than one cause, which is usually the case. A couple of things here. First, even cases talking about but for causation will mention that but for is not the same thing as sole cause . Second, if there is more than one cause, what standard can you use? We discussed one such possibility, necessary cause, here.
This case is definitely worth following and eventually will make its way to the Supreme Court. When it get to the Supreme Court, it will be very interesting as persons with disabilities have not fared well when it comes to employment issues. On the other hand, this isn’t really an employment law question, but rather a question of how broadly the statute should be read, whether two United States Supreme Court cases are being interpreted properly, and the importance of legislative history that for reasons unknown was not brought forth.

motivating factor

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