Lewis v. Humboldt Acquisition Corp., Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0155p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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SUSAN LEWIS,

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Plaintiff-Appellant,

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No. 09-6381

v.

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HUMBOLDT ACQUISITION CORPORATION,

Defendant-Appellee. -

INC., dba Humboldt Manor Nursing Home,

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Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

No. 07-01054—J. Daniel Breen, District Judge.

Argued: November 30, 2011

Decided and Filed: May 25, 2012

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY,

GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE,

WHITE, STRANCH and DONALD, Circuit Judges.

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COUNSEL

ARGUED: Eric Schnapper, UNIVERSITY OF WASHINGTON, Seattle, Washington,

for Appellant. James K. Simms, IV, CORNELIUS & COLLINS, LLP, Nashville,

Tennessee, for Appellee. Jennifer S. Goldstein, UNITED STATES EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amici

Curiae. ON BRIEF: Eric Schnapper, UNIVERSITY OF WASHINGTON, Seattle,

Washington, Michael L. Weinman, WEINMAN & ASSOCIATES, Jackson, Tennessee,

for Appellant. James K. Simms, IV, J. Cole Dowsley, Jr., CORNELIUS & COLLINS,

LLP, Nashville, Tennessee, for Appellee. Jennifer S. Goldstein, UNITED STATES

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., Rae T.

Vann, NORRIS, TYSSE, LAMPLEY & LAKIS, LLP, Washington, D.C., E. Todd

Presnell, Kara E. Shea, MILLER & MARTIN PLLC, Nashville, Tennessee, Nicole E.

Shannon, Chris E. Davis, MICHIGAN PROTECTION & ADVOCACY SERVICE,

INC., Lansing, Michigan, for Amici Curiae.

1

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SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J.,

BOGGS, GIBBONS, ROGERS, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE,

JJ., joined. CLAY, J. (pp. 16–21), delivered a separate opinion concurring in part and

dissenting in part, in which MARTIN, J., joined. STRANCH, J. (pp. 22–31), delivered

a separate opinion concurring in part and dissenting in part, in which MOORE, COLE,

and WHITE, JJ., joined. DONALD, J. (pp. 32–47), delivered a separate opinion

concurring in part and dissenting in part.

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OPINION

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SUTTON, Circuit Judge. When Susan Lewis filed this lawsuit in 2007, Title I

of the Americans with Disabilities Act (ADA) prohibited discrimination “because of”

the disability of an employee. 42 U.S.C. § 12112(a), Pub. L. No. 101-336, Title I, § 102,

104 Stat. 327, 331 (1990) (amended 1991). When it came time to present her ADA

claim to a jury, each party urged the district court to put a different gloss on this

language. The company asked the court to instruct the jury that Lewis could prevail only

if the company’s decision to fire her was “sole[ly]” because of Lewis’s disability, a term

that appears in the Rehabilitation Act but not in the ADA. Lewis asked the court to

instruct the jury that she could prevail if her disability was “a motivating factor” in the

company’s employment action, a phrase that appears in Title VII but not in the ADA.

Consistent with the Supreme Court’s decision in Gross v. FBL Financial Services, 557

U.S. 167 (2009), we see no reason to insert the one addendum (“solely”) or the other (“a

motivating factor”) into the ADA. As the district court’s jury instructions did not

comply with all of these requirements, we reverse and grant Lewis a new trial.

I.

In March 2006, Humboldt Acquisition Corporation dismissed Lewis from her

position as a registered nurse at one of the company’s retirement homes. Lewis sued

Humboldt under the ADA in March 2007, claiming that Humboldt fired her because she

had a medical condition that made it difficult for her to walk and that occasionally

required her to use a wheelchair. Humboldt responded that it dismissed Lewis based on

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 3

an outburst at work, in which she allegedly yelled, used profanity and criticized her

supervisors.

The case went to a jury. At the close of the trial, Lewis asked the court to

instruct the jury that if “the complained of discrimination was a motivating factor in the

adverse employment decision,” she should prevail. R.57 at 5 (emphasis added). The

district court refused the request. It instead adopted the company’s proposed

instruction—that Lewis could prevail only if “the fact that [the] plaintiff was a qualified

individual with a disability was the sole reason for the defendant’s decision to terminate

[the] plaintiff.” R.100 at 14 (emphasis added). The jury ruled for the company.

II.

In adopting the company’s proposed instruction, the district court did not walk

alone. For the past seventeen years, our court has required district courts to instruct

juries that ADA claimants may win only if they show that their disability was the “sole”

reason for any adverse employment action against them. The term crept into our ADA

jurisprudence in Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir. 1995), which

involved claims under the ADA and the Rehabilitation Act of 1973, a happenstance that

may explain why we blurred the distinction between the laws in the first place. Then,

as now, the Rehabilitation Act and the ADA serve the same goals, seeking to eliminate

disability-based discrimination and other barriers to employment and public services for

individuals with disabilities. With the passage of the ADA in 1990, Congress extended

many of the Rehabilitation Act’s protections to entities that do not receive federal

funding, and borrowed many of the requirements and standards from the earlier law in

doing so. Relying on these similarities between the two laws (but neglecting to mention

the differences between their causation standards), Maddox applied the Rehabilitation

Act’s causation standard to both claims because “[t]he ADA parallels the protection of

the Rehabilitation Act.” Id. at 846 n.2.

Consistent with Maddox, we used the “solely” standard in an ADA-only claim

a year later, Monette v. Electronic Systems Corporation, 90 F.3d 1173, 1177–78 (6th

Cir. 1996), and before long that became the standard for relief under the ADA in this

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circuit, see, e.g., Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 363–64 (6th

Cir. 2007); Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598 (6th Cir. 2002).

The longer we have stood by this standard, the more out of touch it has become

with the standards used by our sister circuits. At this point, no other circuit imports the

“solely” test into the ADA. See Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996);

Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000); Shellenberger v.

Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003); Baird v. Rose, 192 F.3d 462,

468–69 (4th Cir. 1999) (Title II case); Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir.

2008); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 963 (7th Cir. 2010);

Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995); Head v. Glacier

Northwest, Inc., 413 F.3d 1053, 1065 (9th Cir. 2005); Bones v. Honeywell Int’l, Inc., 366

F.3d 869, 878 (10th Cir. 2004); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1074

(11th Cir. 1996); Adeyemi v. Dist. of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008).

Our interpretation of the ADA not only is out of sync with the other circuits, but

it also is wrong. Since Maddox, Congress has amended the Rehabilitation Act and the

ADA several times, but the distinction between the causation standards used by the two

laws persists. When Lewis filed this lawsuit in 2007, § 504 of the Rehabilitation Act

provided: “No otherwise qualified individual with a disability . . . shall, solely by reason

of his or her disability, be . . . subjected to discrimination.” 29 U.S.C. § 794(a)

(emphasis added). At the time, Title I of the ADA provided: “No covered entity shall

discriminate against a qualified individual with a disability because of the disability of

such individual.” 42 U.S.C. § 12112(a) (emphasis added).

Nor is Title I of the ADA, which applies to private and public employers, the

only section of the ADA that fails to use “solely.” Title II of the ADA, applicable to

public services, says:

Subject to the provisions of this subchapter, no qualified individual with

a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by any such

entity.

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Id. § 12132 (emphasis added). The same is true of Title III (public accommodations),

which applies to discrimination “on the basis of disability,” id. § 12182(a), and Title V

(anti-retaliation), which bars discrimination “because” an individual opposed an

employment practice, id. § 12203(a).

Later amendments to the ADA do not change things. Under the ADA

Amendments Act of 2008, Title I now reads: “No covered entity shall discriminate

against a qualified individual on the basis of disability in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and privileges of employment.”

42 U.S.C. § 12112(a) (emphasis added). Even though the amended law does not cover

this lawsuit, it too says nothing about a sole-cause standard of liability. At no point, then

or now, has the ADA used the “solely” because of formulation found in the

Rehabilitation Act.

That leaves us with two laws with two distinct causation standards. One bars

differential treatment “solely by reason of” an individual’s disability; the other bars

differential treatment “because of” the individual’s disability. No matter the common

history and shared goals of the two laws, they do not share the same text. Different

words usually convey different meanings, and that is just the case here. A law

establishing liability against employers who discriminate “because of” an employee’s

disability does not require the employee to show that the disability was the “sole” cause

of the adverse employment action.

Nor should it surprise anyone that Congress opted to give the ADA more

regulatory bite. After seventeen years of experience with the Rehabilitation Act’s

“solely” standard, Congress could well have decided that this limitation on employer

liability should not be extended, particularly in a statute designed “to provide a clear and

comprehensive national mandate for the elimination of discrimination against individuals

with disabilities.” 42 U.S.C. § 12101(b)(1). Whatever the reason for the difference

between the standards, we cannot ignore the difference. Courts must refrain from

“apply[ing] rules applicable under one statute to a different statute without careful and

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critical examination,” Gross, 557 U.S. at 174, an examination that in this instance

reveals distinct causation tests. Making that distinction all the more glaring is the reality

that Congress has amended the two statutes many times over the years but has never seen

fit to join the causation standards. See id.

In contending that we should continue to add “solely” to the ADA causation

standard, Humboldt relies on another provision of the ADA. “Except as otherwise

provided in this chapter,” it says, “nothing in this chapter shall be construed to apply a

lesser standard than the standards applied under title V of the Rehabilitation Act of 1973

. . . .” 42 U.S.C. § 12201(a). Yet this provision does not merge the two causation

standards. The first clause of the provision offers one reason. It contains a comparison

caveat, warning the reader: “Except as otherwise provided in this chapter,” except in

other words as provided in the text of the ADA—exactly the company’s problem here.

The second clause provides another reason. It warns courts not to dilute the ADA

standard of care relative to the Rehabilitation Act (not to construe it as “a lesser

standard”). But respect for the ADA language—reading it as “because of,” not as

“solely because of”—raises the employer’s standard of care in ADA cases. That is why

it is the employee, not the employer, who asks us to respect the ADA language as it is.

See Bragdon v. Abbott, 524 U.S. 624, 631–32 (1998) (construing the no “lesser

standard” language of the ADA to mean that no less protection be afforded by the ADA

than by the Rehabilitation Act).

Humboldt insists that another provision of the ADA brings the two causation

standards together. That subsection instructs “agencies with enforcement authority”

under the ADA to “develop procedures to ensure that administrative complaints filed

under [the ADA] and under the Rehabilitation Act of 1973 are dealt with in a manner

that avoids duplication of effort and prevents imposition of inconsistent or conflicting

standards for the same requirements under [the ADA] and the Rehabilitation Act of

1973.” 42 U.S.C. § 12117(b). Here, too, a relevant caveat appears, as the provision

speaks only of similar treatment “for the same requirements” under the two statutes, a

prerequisite that remains unfulfilled. The provision at any rate addresses only the

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enforcement of the laws by executive agencies and the enforcement procedures those

agencies should develop. It does not speak to the standards dictated by the statutes

themselves. Enforcement provisions generally do not alter substantive standards of care.

An appeal to legislative history does not alter this conclusion. A House Report

on the ADA says that “[a]dministrative complaints filed under [the ADA] and the

Rehabilitation Act should be dealt with in a manner to avoid duplication of efforts, and

to prevent inconsistent or conflicting standards.” H.R. Rep. No. 101-485, pt. 3, at

472 (1990), reprinted in 1990 U.S.C.C.A.N. 445. Even if one measure of legislative

purpose indicates a congressional desire to eliminate any “inconsistent . . . standards”

between the two statutes, that cannot trump a superior measure of legislative

purpose—the text Congress enacted and the President signed into law, which refers to

“inconsistent . . . standards” with respect to “the same requirements.”

The sole-cause standard in the end is a creature of the Rehabilitation Act, and

that is where we should leave it. The standard does not apply to claims under the ADA.

III.

In addition to urging the district court not to use the sole-cause standard, Lewis

asked the court to instruct the jury that the ADA imposes liability if the claimant’s

disability “was a motivating factor in the adverse employment decision.” R.57 at 5

(emphasis added). The words “a motivating factor” appear nowhere in the ADA but

appear in another statute: Title VII. For the same reasons we have no license to import

“solely” from the Rehabilitation Act into the ADA, we have no license to import “a

motivating factor” from Title VII into the ADA.

Congress enacted Title VII as part of the Civil Rights Act of 1964. Pub. L. No.

88-352, § 701 et seq., 78 Stat. 241. As enacted, Title VII made it unlawful “for an

employer . . . to discriminate against any individual . . . because of such individual’s

race, color, religion, sex, or national origin.” Id. § 703 (emphasis added). In 1989, the

Court considered how a because-of standard of causation worked in mixed-motives

cases—cases where permissible and impermissible considerations played a role in the

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employer’s adverse employment action. Price Waterhouse v. Hopkins, 490 U.S. 228,

232 (1989). The decision splintered four ways. As later characterized by the Court, the

lowest common denominator of Price Waterhouse was the creation of a burden-shifting

framework to determine causation in mixed-motive cases: “[I]f a Title VII plaintiff

shows that discrimination was a ‘motivating’ or a ‘substantial’ factor in the employer’s

action, the burden of persuasion should shift to the employer to show that it would have

taken the same action regardless of that impermissible consideration.” Gross, 557 U.S.

at 171.

Two years after Price Waterhouse, Congress passed the Civil Rights Act of 1991,

which added two relevant provisions to Title VII. The first says: “Except as otherwise

provided in this title, an unlawful employment practice is established when the

complaining party demonstrates that race, color, religion, sex, or national origin was a

motivating factor for any employment practice, even though other factors also motivated

the practice.” Pub. L. No. 102–166, § 107, 105 Stat. 1071, 1075 (1991) (codified at

42 U.S.C. § 2000e-2(m)) (emphasis added). The second provides limited

remedies—declaratory relief, injunctive relief and attorney’s fees, but not damages or

reinstatement—if the claimant meets the motivating factor standard but the employer

shows it would have taken the same adverse employment action anyway. Id. (codified

at 42 U.S.C. § 2000e-5(g)(2)(B)). The two provisions “responded to Price Waterhouse”

by adding new standards for mixed-motives cases to the text of Title VII. Desert Palace,

Inc. v. Costa, 539 U.S. 90, 94 (2003).

There are two ways to look at this history. One is that Price Waterhouse

established the meaning of “because of” for Title VII and other statutes with comparable

causation standards, with Congress essentially ratifying Price Waterhouse: Namely, a

“because of” causation standard permits a plaintiff to show that the prohibited

characteristic was “a motivating factor” of the adverse employment action, shifting the

burden of persuasion to the employer to show that the characteristic was not a “but-for”

cause of the action because it would have taken the same action anyway for legitimate

reasons. The other is that by amending Title VII to provide recovery under a

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“motivating factor” theory, Congress made this theory available to Title VII claimants

but not to claimants under other civil rights statutes given that Congress did not extend

this framework to the other statutes.

Enter Gross v. FBL Financial Services, 557 U.S. 167 (2009). It adopted the

second theory and refused to expand the reach of Title VII’s “motivating factor”

amendments to another civil rights statute that contained a “because of” standard of

causation. At stake in Gross was whether to apply Title VII’s “motivating factor”

standard for proving employment discrimination, 42 U.S.C. §§ 2000e-2(m) and 2000e-

5(g)(2)(B), to disputes under the Age Discrimination in Employment Act, 29 U.S.C.

§ 623(a)(1). Although both statutes concern employment discrimination and both

statutes share common goals, the Court reasoned that it would not casually “apply rules

applicable under one statute to a different statute.” Gross, 557 U.S. at 174. Unlike Title

VII, Gross observed, the ADEA does not allow a plaintiff to prove discrimination merely

by showing that her disability was a motivating factor behind her adverse employment

action; the ADEA requires discrimination to be because of a disability, which means

“but-for” causation. Id. at 177–78. Making this difference in language particularly

salient was the reality that Congress amended both statutes in 1991, but added the

“motivating factor” language only to Title VII, not to the ADEA. Civil Rights Act of

1991, Pub. L. No. 102-166, § 107, 105 Stat. 1071; see also id. § 115; Gross, 557 U.S.

at 174–75.

This rationale applies with equal force to the ADA. The ADEA prohibits

discrimination “because of [an] individual’s age,” 29 U.S.C. § 623(a)(1), and does “not

provide that a plaintiff may establish discrimination by showing that age was simply a

motivating factor” in the adverse employment decision. Gross, 557 U.S. at 174. So too

with the ADA, which makes unlawful “discriminat[ion] . . . because of” a person’s

disability, 42 U.S.C. § 12112(a), (b)(1), and which says nothing about allowing a

plaintiff to prevail because a disability was a “motivating factor” in the adverse

employment decision.

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Gross likewise reasoned that Congress “neglected to add [the motivating factor]

provision to the ADEA when it amended Title VII . . . even though it contemporaneously

amended the ADEA in several ways.” 557 U.S. at 174. The same is true of the ADA.

Congress amended Title VII and the ADA through the Civil Rights Act of 1991, but

added the “motivating factor” language only to Title VII. §§ 107, 109. “When Congress

amends one statutory provision but not another,” Gross tells us, “it is presumed to have

acted intentionally.” 557 U.S. at 174.

Gross resolves this case. No matter the shared goals and methods of two laws,

it explains that we should not apply the substantive causation standards of one anti-

discrimination statute to other anti-discrimination statutes when Congress uses distinct

language to describe the two standards. Just as we erred by reading the “solely”

language from the Rehabilitation Act into the ADA based on the shared purposes and

histories of the two laws, supra at 7, so we would err by reading the “motivating factor”

language from Title VII into the ADA. Shared statutory purposes do not invariably lead

to shared statutory texts, and in the end it is the text that matters. The one circuit to

address the ADA/Title VII question after Gross has taken the same path. See Serwatka

v. Rockwell Automation, Inc., 591 F.3d 957, 961–62 (7th Cir. 2010).

Lewis insists she is not asking us to read anything into the text of the ADA that

is not already there. A section of the ADA, she points out, cross-references Title VII:

The powers, remedies, and procedures set forth in sections 2000e-4,

2000e-5, 2000e-6, 2000e-8, and 2000e-9 of [Title VII] shall be the

powers, remedies, and procedures this subchapter provides to the

[EEOC], to the Attorney General, or to any person alleging

discrimination on the basis of disability in violation of any provision of

this chapter, or regulations promulgated under section 12116 of this title,

concerning employment.

42 U.S.C. § 12117(a). But this cross-reference, which predates the 1991 amendments,

accounts for the reality that the ADA does not have any enforcement provisions of its

own. Id. That is why the provision has the label “Enforcement,” id., and why the Title

VII cross-reference invoked by Lewis, 42 U.S.C. § 2000e-5, has the label “Enforcement

provisions.” That also is why these enforcement mechanisms apply only to remedies for

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“discrimination on the basis of disability in violation of any provision of this chapter”

(emphasis added), as opposed to violations of some other standard of care under another

chapter. A disability claimant may not use the “powers, remedies, and procedures” of

Title VII without establishing a violation of the ADA.

Confirming the point, the companion enforcement provision of this section of the

ADA, labeled “Coordination,” directs the agencies with enforcement authority under the

ADA and the Rehabilitation Act to create “procedures” that “prevent[] imposition of

inconsistent or conflicting standards for the same requirements.” 42 U.S.C. § 12117(b).

Congress took the same path with the coordination provision of Title II of the ADA,

which incorporates “[t]he remedies, procedures, and rights” of section 505 of the

Rehabilitation Act. 42 U.S.C. § 12133. Just as the provisions of the ADA incorporating

the Rehabilitation Act’s enforcement provisions do not bring that Act’s standard of care

into the ADA, neither does the provision of the ADA incorporating Title VII’s

enforcement provisions.

There is another reason the incorporation of Title VII’s enforcement “powers,

remedies, and procedures” into the ADA does not pull the “motivating factor” standard

along with them. The part of Title VII that contains the “motivating factor”

test—§ 2000e-2—is not included in the list of enforcement provisions identified in the

ADA but appears (unsurprisingly) in a section of Title VII captioned “Unlawful

employment practices.” That Congress did not incorporate § 2000e-2 into the ADA

ought to give a court pause before doing so itself.

Keep looking, Lewis tells us. Although the ADA’s cross-references do not

mention § 2000e-2, they do mention § 2000e-5, which itself contains a cross-reference

to the “motivating factor” provision when it provides a limited set of remedies for Title

VII claimants who demonstrate motivating-factor discrimination. But this cross-cross-

reference argument contains problems of its own. One is that § 2000e-5 does not direct

judges to apply the substantive “motivating factor” standard from § 2000e-2(m); it

permits them only to provide a remedy for plaintiffs who “prove[ ] a violation under

section 2000e-2(m).” 42 U.S.C. § 2000e-5(g)(2)(B). No ADA plaintiffs will prevail

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under § 2000e-2(m), because that provision is a substantive standard that applies only

to Title VII plaintiffs, not to ADA plaintiffs, as it speaks to “[i]mpermissible

consideration of race, color, religion, sex, or national origin” but says nothing about

disability status. Nor does this reading make the ADA’s incorporation of § 2000e-5

meaningless. That subsection contains more than a dozen other provisions detailing

procedures that remain applicable under the ADA. In incorporating a wide range of Title

VII enforcement procedures and remedies into the ADA, it is hardly surprising that some

of those provisions (in truth some parts of those provisions) apply by their terms only

to Title VII cases.

Still another problem with this argument is that § 2000e-5(g)(2)(B) cross-

references all of § 2000e-2(m). It applies the “motivating factor” standard of causation

to “race, color, religion, sex, or national origin” discrimination in employment. That

means an ADA claimant could win only by showing discrimination based on another

protected ground. Even with a lower standard of causation, that is no benefit to

claimants seeking relief premised on disability-based discrimination. Surely the ADA

does not impose liability based on other forms of discrimination or, worse, make other

forms of discrimination a precondition for establishing disability-based discrimination.

Legislative history does not alter this conclusion. Just as appeals to legislative

history did not affect Gross’s decision to respect the differences between the text of the

ADEA and the text of Title VII, see 557 U.S. at 186 n.6 (Stevens, J., dissenting), so they

do not affect our decision. The 1990 Report from the House Committee on the Judiciary

adds nothing to Lewis’s argument. In addressing the ADA’s incorporation of the

“powers, remedies, and procedures” from five sections of Title VII, it said that “[a] bill

is currently pending” that “would amend the powers, remedies and procedures of title

VII . . . . Because of the cross-reference to title VII in [the ADA], any amendments to

title VII that may be made in [that bill] . . . would be fully applicable to the ADA.” H.R.

Rep. No. 101-485(III), at 24, reprinted in 1990 U.S.C.C.A.N. 445, 471. That bill

became the Civil Rights Act of 1991. But any argument premised on this report merely

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reprises the cross-reference textual argument addressed above and suffers from the same

problems identified above.

More helpful to Lewis is this line from the House Committee on the Judiciary

Report on the 1991 Civil Rights Act: “[M]ixed motive cases involving disability under

the ADA should be interpreted consistent with the prohibition against all intentional

discrimination in Section 5 of this Act.” H.R. Rep. No. 102-40, pt. 2, at 3, reprinted in

1991 U.S.C.C.A.N. 694, 697. Yet this sentence does not import the motivating-factor

standard into the ADA for several reasons. One, this section of the report relates to Title

VII, not the ADA. Courts are justifiably skeptical of legislative history that purports to

amend an earlier-enacted statute and that relates to an amendment to a different law. See

O’Gilvie v. United States, 519 U.S. 79, 89 (1996). Two, the legislation proposed by this

report was not the legislation adopted by Congress. See John L. Flynn, Note, Mixed-

Motive Causation Under the ADA: Linked Statutes, Fuzzy Thinking, and Clear

Statements, 83 Geo. L.J. 2009, 2048–49 (1995) (proposed bill would have allowed

plaintiffs to receive punitive and compensatory damages if they met motivating-factor

standard); compare Civil Rights Act of 1991, Pub. L. No. 102-166, § 107, 105 Stat.

1071, 1075–76, with H.R. Rep. 102-40, pt. 2, at 715. Three, the same report says (just

a few sentences earlier) that the Title VII standards should apply to the ADA and the

ADEA. It says: “A number of other laws banning discrimination, including the [ADA]

and the [ADEA] are modeled after, and have been interpreted in a manner consistent

with, Title VII. The Committee intends that these other laws modeled after Title VII be

interpreted consistently in a manner consistent with Title VII as amended by this Act.”

H.R. Rep. 102-40, at 3. If this consistency objective did not alter the outcome in Gross

with respect to the ADEA, it is difficult to see why it should make a difference here.

The best indication of legislative purpose, Gross reminds us, is the meaning of the

legislative text Congress enacts, not the meaning of a House Report describing that

purpose—and especially not a House Report describing the purpose of language

Congress never adopted.

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That leaves one question: what standard should trial courts use in instructing

juries in ADA cases? Gross points the way. The ADEA and the ADA bar

discrimination “because of” an employee’s age or disability, meaning that they prohibit

discrimination that is a “‘but-for’ cause of the employer’s adverse decision.” 557 U.S.

at 176. The same standard applies to both laws. See Serwatka, 591 F.3d at 961–62.

A brief rejoinder to our colleagues’ partial dissents is in order. First, every

salient argument in favor of importing the “motivating factor” burden-shifting test from

Title VII into the “because of” test of the ADA was made in Gross. For the same

reasons the Supreme Court opted not to construe the “because of” language in the ADEA

to incorporate this distinct statutory test from Title VII, we must do the same here. No

court of appeals has reached a contrary conclusion on this point after Gross. Second, the

same tools of statutory construction that require us to resist importing the “solely”

language from the Rehabilitation Act into the ADA require us to resist importing the

“motivating factor” burden-shifting framework of Title VII into the ADA. The two

inquiries are exceedingly similar. Third, none of the dissents’ lower-court citations

holds up. One of them, Hunter v. Valley View Local Schools, 579 F.3d 688 (6th Cir.

2009), concerned the application of a “motivating factor” test to the Family Medical

Leave Act, 29 U.S.C. § 2615(a)(2). There, however, a relevant administrative

regulation, previously upheld by our court, required that outcome. Hunter, 579 F.3d at

692. The same is not remotely true here. Another one, Smith v. Xerox Corp., 602 F.3d

320, 329–30 (5th Cir. 2010), concerned the use of a “motivating factor” test in a

different provision of Title VII. There, no importation of a test from one statute into

another was at issue, which is one reason the Fifth Circuit distinguished the Seventh

Circuit’s decision in Serwatka, as opposed to disagreeing with it, as the dissent must do

here, compare id. at 329 n.28 with infra at 25 n.5. A final case, Pinkerton v. Spellings,

529 F.3d 513 (5th Cir. 2008), concerned the issue at hand. There, however, the Fifth

Circuit reviewed the issue before Gross, which is to say it reviewed the issue without the

guidance provided by the Supreme Court and without considering the relevant issues

joined here.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 15

IV.

For these reasons, we reverse the judgment against Lewis and remand for a new

trial.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 16

_________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_________________________________________________

CLAY, Circuit Judge, concurring in part and dissenting in part. The majority

opinion fails to accomplish the original goal of this Court in choosing to hear this case

en banc—which was to bring this Circuit into accord with the prevailing legal opinion

on the issue addressed by the en banc Court. The majority continues to leave the Sixth

Circuit opposed to the multiplicity of other circuits on the issue of the standard of

causation required to prove discrimination under the Americans with Disabilities Act of

1990 (ADA), 42 U.S.C. §§ 12101–12213. It also fails to critically examine the

relationship between Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and the ADA

in interpreting the ADA’s language. For these reasons, I respectfully dissent.

An unanimous Sixth Circuit agrees that the “sole-cause” standard is inappropriate

for determining causation under the ADA, but we are inexplicably divided by the task

of determining which standard of causation to place in its stead. We look to the plain

language of the ADA to discern whether it guides our decision. The ADA prohibits

discrimination “against a qualified individual with a disability because of the disability.”

42 U.S.C. § 12112(a).1 Its causation language uses the phrase “because of,” which is not

determinative as to whether a “but-for,” “motivating-factor,” or other standard applies.

Instead of viewing the statute singly, we must consider the broader purposes of the

statute and its relationship to other civil rights statutes to determine the congressional

intent as to the meaning of this phrase.

It is unnecessary to resort to a lengthy explanation of the legislative history of

the ADA and other civil rights statutes or an extended statutory construction analysis,

because the authority setting forth the application of Title VII to the ADA is clear and

forthright. Simply put, the ADA was enacted to expand the protection against

discrimination beyond that afforded by Title VII, in order to provide the same remedies

1

Citations to the ADA correspond to the pre-2008 statute.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 17

offered to individuals discriminated against on the basis of race, color, religion, sex, and

national origin to those discriminated against on the basis of their disabilities. See

42 U.S.C. § 12101. The ADA explicitly cross-references and adopts Title VII’s

enforcement section, including “powers, remedies, and procedures.”

42 U.S.C. § 12117(a) (“The powers, remedies, and procedures set forth in sections

2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers,

remedies, and procedures [of] this subchapter . . . .”). Title VII’s remedies thus apply

to the ADA with equal force and validity; this includes the changing interpretation of

Title VII and any amendments made thereto. As noted by the House of Representatives

Report on the ADA, “[b]ecause of the cross-reference to title VII” in the ADA, “any

amendment to Title VII that may be made” with respect to Title VII’s powers, remedies,

and procedures “would be fully applicable to the ADA.” H.R. Rep. No. 101-485, pt. 3,

at 48 (1990). In other words, “[b]y retaining the cross-reference to Title VII, the

Committee’s intent is that the remedies of Title VII, currently and as amended in the

future, will be applicable to persons with disabilities.” Id. “Thus, if the powers,

remedies, and procedures change in title VII of the 1964 Act, they will change

identically under the ADA for persons with disabilities.” Id. The fact that Title VII

employs the motivating-factor standard of causation informs us that the meaning of the

ADA’s “because of” language should correspondingly be interpreted to invoke the

motivating-factor standard. 42 U.S.C. § 2000e-2(m).

The shortcomings of the “but-for” standard employed by the majority become

clear when one considers, in this context, how the “but-for” concept is narrowly

circumscribed by its own definition. “But-for cause,” also referred to as “actual cause”

or “cause in fact,” means “[t]he cause without which the event could not have occurred.”

Black’s Law Dictionary 212 (7th ed. 1999). It is “[t]he doctrine that causation exists

only when the result would not have occurred without the [relevant] conduct.” Id. at

192–93. In other words, but-for cause means that the relevant factor was necessary for

the consummation of an event. As the Supreme Court has described it, “[b]ut-for

causation is a hypothetical construct.” Price Waterhouse v. Hopkins, 490 U.S. 228, 240

(1989). “In determining whether a particular factor was a but-for cause of a given event,

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 18

we begin by assuming that that factor was present at the time of the event, and then ask

whether, even if that factor had been absent, the event nevertheless would have

transpired in the same way.” Id.

A motivating-factor standard, which is in accord with the requirements of the

ADA, requires a plaintiff to show that her protected trait, disability in this case, was one

of the considerations that the defendant took into account when taking action against the

plaintiff. See id. at 250. A but-for standard requires proof that even if that consideration

was absent, the adverse action “nevertheless would have transpired in the same way.”

Id. at 240 (but distinguishing the but-for standard from a sole-cause standard). While

the but-for standard may lessen the burden on plaintiffs seeking to prove disability-based

discrimination when compared with the sole-cause standard, it barely does so. Thus, a

but-for standard suggests the availability of a much more limited basis for recovery by

a plaintiff than would be indicated by the motivating-factor standard, which is more

compatible with the remedial goals and objectives of Title VII. See id. at 240–42.

For example, imagine that a disabled plaintiff seeks remedy under the ADA

following the termination of her employment, which she believes was on the basis of her

disability. The plaintiff admits evidence that the employer wished to terminate her

because the employer believed her disability was troublesome to its business; but the

employer admits other evidence that the plaintiff’s work was less than exemplary. Under

a motivating-factor standard, the plaintiff could easily satisfy her causation burden by

presenting evidence that her disability provided one of the reasons for her termination.

However, under the but-for standard, the plaintiff is obligated to prove that without the

disability, her allegedly poor performance would not have been enough to motivate her

employer to terminate her. In practice, a plaintiff will rarely discover objective evidence

of her employer’s state of mind or internal motivations that would satisfy this extremely

heavy burden. The plaintiff must instead resort to conjectural inquiry of the employer’s

thoughts and purposes, which the employer can simply and succinctly reject by offering

a myriad of other subjective reasons for her termination. As the Supreme Court stated

in Price Waterhouse, it is contrary to “our common sense” that “Congress meant to

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 19

obligate a plaintiff to identify the precise causal role played by legitimate and

illegitimate motivations in the employment decision she challenges.” Id. at 241; see also

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 191 (2009) (Breyer, J., dissenting) (“[T]o

apply ‘but-for’ causation is to engage in a hypothetical inquiry about what would have

happened if the employer’s thoughts and other circumstances had been different. The

answer to this hypothetical inquiry will often be far from obvious, and, since the

employee likely knows less than does the employer about what the employer was

thinking at the time, the employer will often be in a stronger position than the employee

to provide the answer.”). When taking into account the purpose of the ADA to

ameliorate discrimination against people with disabilities and its relationship to other

civil rights statutes, it becomes clear that the less burdensome motivating-factor standard

of causation should apply.

The majority relies on the Supreme Court’s recent decision in Gross, which held

that claims under the Age Discrimination in Employment Act of 1967 (ADEA),

29 U.S.C. §§ 621–634, are governed by the but-for standard and not the motivating-

factor standard, as conclusive support for the proposition that the but-for standard must

apply to ADA claims as well. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957,

961–62 (7th Cir. 2010) (applying the but-for standard to the ADA after Gross). But see

Bolmer v. Oliveira, 594 F.3d 134, 148–49 (2d Cir. 2010) (declining to decide whether

Gross also applies in the ADA context); Crouch v. J.C. Penney Corp., Inc., 337 F. App’x

399, 402 n.1 (5th Cir. 2009) (per curiam) (same). However, Gross is inapplicable to our

analysis of the appropriate standard of causation under the ADA because Gross

examined the issue in the context of the ADEA, which involves discrimination under a

different analytical rubric. See Hunter v. Valley View Local Sch., 579 F.3d 688, 691 (6th

Cir. 2009) (analyzing the applicability of Gross to claims under the Family and Medical

Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, and concluding that the FMLA remains

governed by the motivating-factor standard of Title VII). As the Gross Court itself

notes, “[w]hen conducting statutory interpretation, we ‘must be careful not to apply rules

applicable under one statute to a different statute without careful and critical

examination.’” 557 U.S. at 174 (citing Fed. Express Corp. v. Holowecki, 552 U.S. 389,

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 20

393 (2008)). Because the ADA is explicitly tied to Title VII’s remedies

provisions—unlike the ADEA—a careful examination of the two statutes makes clear

that a plaintiff alleging discrimination under the ADA must only prove that the

discrimination was a motivating factor for the adverse action.

Significantly, a majority of our sister circuits have embraced the motivating-

factor standard in reviewing ADA claims. See Pinkerton v. Spellings, 529 F.3d 513, 519

(5th Cir. 2008) (per curiam) (“Under a plain reading of the statute, and in accord with

the position of other circuits, . . . [t]he proper causation standard under the ADA is a

‘motivating factor’ test.”); Head v. Glacier Nw., Inc., 413 F.3d 1053, 1064–65 (9th Cir.

2005) (deciding that the ADA’s phrase “‘because of’ conveys the idea of a factor that

made a difference in the outcome” (citation omitted)); Shellenberger v. Summit

Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003) (invoking a pretext and mixed-motives

theory, which requires proof that disability was a “substantial motivating factor” in the

adverse action); Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000)

(holding that the motivating factor standard “is consistent with the broad purpose of the

ADA”); Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999); McNely v. Ocala Star-Banner

Corp., 99 F.3d 1068, 1077 (11th Cir. 1996) (holding that “motivating factor” and “but

for” constitute the same standard); Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996);

Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). The Sixth Circuit

should join this consensus.

Moreover, as we were recently reminded with Congress’ amendments to Title

VII, it is important that courts not pare down the rights afforded to individuals by the

legislature or act as lawmakers. Indeed, Congress glaringly proclaimed in amending

Title VII with the Civil Rights Act of 1991 that its statutory amendments had two

purposes: “The first is to respond to recent Supreme Court decisions by restoring the

civil rights protections that were dramatically limited by those decisions. The second

is to strengthen existing protections and remedies available under federal civil rights

laws . . . .” H.R. Rep. No. 102-40, pt. 2, 1 (1991). Justice Stevens gave recognition to

this fact in Gross by reiterating that, “[a]s part of its response to ‘a number of recent

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 21

decisions by the United States Supreme Court that sharply cut back on the scope and

effectiveness of [civil rights] laws,’ . . . Congress eliminated the affirmative defense to

liability that Price Waterhouse had furnished employers and provided instead that an

employer’s same-decision showing would limit only a plaintiff’s remedies.” 557 U.S.

at 185 (Stevens, J., dissenting) (citing H.R. Rep. No. 102-40, pt. 2, 2).

Employing a but-for causation standard for ADA claims imposes a burden upon

individuals in seeking to vindicate disability-based discrimination that is greater than the

burden intended by Congress. Because neither Congress—nor the Supreme Court—has

expressly diminished individuals’ rights under the ADA, it is inappropriate for our

Circuit to do so without such a mandate. See, e.g., Borgmann, Caitlin E., Rethinking

Judicial Deference to Legislative Fact-Finding, 84 Ind. L.J. 1, 38 (2009) (“[W]here

Congress or a state legislature seeks to create or protect, rather than curtail, individual

rights, there is less compelling justification for the courts to intercede.”). Although we

have made one stride forward in eliminating the more burdensome sole-cause standard,

the majority has taken us a step back in continuing to place an additional indefensible

onus on plaintiffs in proving their ADA claims that was not prescribed by Congress.

I decline to join the majority opinion due to its failure to bring our Circuit into

consensus with the generally-agreed upon correct standard of adjudicating discrimination

claims in the ADA context. The majority’s failure to properly acknowledge Congress’

intention that the ADA be interpreted in accordance with the motivating-factor standard

employed in the Title VII context leaves us with the but-for standard, which is only

marginally more efficacious than the sole cause standard that has now been entirely

repudiated by this Circuit.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 22

________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

________________________________________________

JANE B. STRANCH, Circuit Judge, concurring in part and dissenting in part.

I concur with the majority opinion’s holding that the protection against discrimination

provided by the Americans with Disabilities Act does not hinge upon establishing that

disability was the “sole” cause of an adverse employment action. And I agree that the

error this decision corrects resulted from our prior failure to respect the words of the

ADA and the rules of statutory construction that must govern our analysis.

For the same reasons—failure to respect the words of the statute as a whole and

failure to honor the tenets of statutory construction—I respectfully dissent from the

majority’s determination that we now impose a “but for” standard upon those seeking

protection under the ADA from discrimination “because of” disability. Applying the

rules we admittedly failed to apply before, I conclude that the plain language of the ADA

permits a plaintiff to recover when the plaintiff’s disability was a motivating factor in

the adverse employment decision.1

In analyzing a statute, both language and context matter. To understand the

ADA, particularly the “because of” language in section 102(a), the year in which the

ADA was enacted is the key in two respects. First, during 1990, Congress was working

on both the ADA and the Civil Rights Act, the latter including amendments to Title VII.

This presented a practical problem for implementing Congressional intent to establish

the same powers, remedies, and procedures in both the ADA and Title VII: the ADA

was enacted in 1990 but not soon enough for its provisions to be specified in the bills

that ultimately became the Civil Rights Act; and, the Civil Rights Act was not completed

until 1991, too late to be specified in the ADA. Due to this timing issue, Congress chose

to effectuate its goal by linking the two statutes, explicitly incorporating Title VII

1

As the majority recognizes in its opening, this case is about the ADA language prior to the

Congressional revisions in 2008. Thus, only the pre-2008 statute is before this Court. Since we are not

called upon nor authorized to opine on the post-2008 ADA, any conclusions offered on the current ADA

are dicta.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 23

provisions into the ADA by reference. This served two purposes, it linked the statutes

and insured that they would proceed in tandem across time.

The second reason the ADA’s year of enactment is key is tied to the instruction

that, when analyzing statutory language, we must be mindful of the context in which it

was crafted. It is a settled canon of statutory construction that courts will presume

Congress was well aware of the prevailing law when it enacted a statute. United States

v. Kassouf, 144 F.3d 952, 957 (6th Cir. 1998); see also North Star Steel Co. v. Thomas,

515 U.S. 29, 34 (1995) (“[I]t is not only appropriate but also realistic to presume that

Congress was thoroughly familiar with [our] precedents . . . and that it expect[s] its

enactment[s] to be interpreted in conformity with them.”); White v. Burlington N. &

Santa Fe R. Co., 364 F.3d 789, 818 (6th Cir. 2004) (Sutton, J., concurring in part and

dissenting in part) (“[I]t is appropriate to consider other indicators of statutory meaning,

analogous Supreme Court precedents and relevant state laws predating the legislation.”).

Thus, we are tasked with discerning what Congress intended the phrase “because of” an

employee’s disability to mean when it enacted the ADA.

In 1989, the Supreme Court decided Price Waterhouse v. Hopkins, 490 U.S. 228

(1989), determining what the statutory language “because of” meant in Title VII. The

Court held that where a plaintiff proved gender played “a motivating part” in an

employment decision, along with other legitimate factors, the plaintiff established that

the decision was “because of” sex in violation of Title VII. Id. at 250. This method of

proof became known as the “mixed-motive” analysis, see id. at 246-47, or the

“motivating factor” standard. Thus, when Congress enacted the ADA shortly thereafter

and chose both to include the “because of” language and to cross-reference Title VII, it

knew that using the Title VII language in an analogous and closely related employment

anti-discrimination statute created a “motivating factor” standard. See Cannon v. Univ.

of Chicago, 441 U.S. 677, 698-99 (1979) (“[E]valuation of congressional action must

take into account its contemporary legal context.”); Mascio v. Pub. Emps. Ret. Sys. of

Ohio, 160 F.3d 310, 315 (6th Cir. 1998) (“To understand the intent and purpose behind

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 24

the legislation in question, it is important to consider the political and legislative context

in which it was enacted.”).

The majority ignores these traditional rules of construction and instead declares

this ADA case controlled by the Supreme Court’s decision in Gross v. FBL Fin. Servs.

Inc., 557 U.S. 167 (2009), an Age Discrimination in Employment Act (ADEA) case that

applied a “but for” causation standard and not a “motivating factor” standard. The

majority errs. The statutory language and enactment context of the ADA makes

inapposite an analysis of the ADEA. More about the significance of those differences

later. For now, the crucial issue is that the majority ignores the rules of statutory

construction that require evaluation of such differences and instead posits an all-or-

nothing result. The majority presumes that there are only two ways to interpret Price

Waterhouse and the subsequent legal history, including passage of the Civil Rights Act

of 1991: either that (1) the language “because of” in a statute always means “a

motivating factor” or (2) it means so only for Title VII and never for any other statute.

(Majority Op. at 8-9). Having created this false dichotomy, the majority then presumes

that in Gross the Supreme Court adopted the “second theory”—that Congress intended

to provide a “motivating factor” standard only to Title VII claimants “but not to

claimants under other civil rights statutes.” (Majority Op. at 9). This blanket premise,

which infects the majority’s entire analysis, finds validation neither in the rules of

statutory construction nor in the case precedent of either the Supreme Court or the Sixth

Circuit.2

As to the Supreme Court, Gross simply cannot support the weight of the

majority’s conclusion. Gross itself teaches that statutory interpretation is an

individualized inquiry. Its very language belies blanket applicability as it clearly

2

The majority challenges the lower court citations herein, claiming none “holds up.” (Majority

Op. at 14). But they do because they establish that neither the other circuits cited nor we ourselves have

bought into the premise underlying the majority opinion, that Congress intended a “motivating factor”

standard to apply only to Title VII but not to “other civil rights statutes.” (Majority Op. at 9). That the

ultimate outcome in those cases may relate to factors not present in our case is of no moment. The issue

is that in the cases cited the courts fully review the statutory language at issue to determine what each

statute or section of a statute means, the very analysis this dissent argues is required. The cited decisions,

including our own, hold up because they do not accept the blanket and constricting premise the majority

opinion now posits.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 25

undertakes an analysis only of the ADEA: “Our inquiry therefore must focus on the text

of the ADEA[.]” 557 U.S. at 175. Further, it reminds us that we “must be careful not to

apply rules applicable under one statute to a different statute without careful and critical

examination”—a rule the majority transgresses here. Id. at 174.

In Hunter v. Valley View Local Schools, 579 F.3d 688, 691 (6th Cir. 2009), we

took that instruction to heart and refused to presume that Gross employed a broad stroke

wiping out the applicability of Title VII standards to other civil rights statutes. We

examined the issue and concluded, “Gross thus requires us to revisit the propriety of

applying Title VII precedent to the FMLA by deciding whether the FMLA, like Title

VII, authorizes claims based on an adverse employment action motivated by both

[prohibited factors] and also other, permissible factors.” Id. (holding that Price

Waterhouse’s “motivating factor” standard applies to FMLA claims). In Smith v. Xerox

Corp., 602 F.3d 320 (5th Cir. 2010), the Fifth Circuit gave a similar explication of

Gross—in response to the same claim of Gross’s controlling authority—when it sought

to determine whether the “motivating factor” standard from Title VII’s discrimination

provision, 42 U.S.C. § 2000e-2, should apply to Title VII’s retaliation provision,

42 U.S.C. § 2000e-3, which did not contain and was never amended to include

“motivating factor” language. The Fifth Circuit noted that the textual differences

between the ADEA and Title VII guided the Supreme Court’s decision in Gross,3 and

that a “simplified application of Gross” in the Title VII retaliation context, as advocated

by Xerox, “would be contrary to Gross’s admonition against intermingling

interpretations of the two statutory schemes.” Id. at 328-29 (holding that Price

Waterhouse’s “motivating factor” standard applies to Title VII retaliation claims). The

Fifth Circuit reached the conclusion applicable here, that “the Price Waterhouse holding

remains our guiding light.” Id. at 330.

3

The Supreme Court bolstered its decision in Gross by noting that the ADEA and Title VII have

been treated differently by courts in several respects, including in the applicability of Title VII’s

McDonnell Douglas burden-shifting framework, which the Supreme Court has not definitively decided

to apply in the ADEA context. 557 U.S. at 175 n.2. That argument favors a different result here as the

McDonnell Douglas framework has been applied to the ADA. See Raytheon Co. v. Hernandez, 540 U.S.

44, 53-54 (2003).

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 26

The majority finds Smith inapposite because it “concerned the use of a

‘motivating factor’ test in a different provision of Title VII” and concludes the Fifth

Circuit distinguished Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir.

2010) on this basis. (Majority Op. at 14). Smith cannot be dismissed so easily. As the

Fifth Circuit itself recognized, the Gross reasoning could be applied to Title VII’s

retaliation provision, which had not been amended in 1991 to include a “motivating

factor” standard when its discrimination counterpart was so amended. See Smith, 602

F.3d at 328. However, the Smith court rejected “such a simplified application of Gross,”

id. at 328, and declined to follow the “broad view of Gross” adopted by the Seventh

Circuit, id. at 329 n.28. It was this fundamental disagreement regarding Gross’s

appropriate scope that led to the Fifth Circuit’s departure from the reasoning in

Serwatka, not the title of the statute at issue. Finally, the Fifth Circuit also distinguished

Gross as a case on the ADEA, a statute not before that court, as it is not before us. Id.

at 329. Thus, this Court’s analysis in Hunter and the Fifth Circuit’s analysis in Smith

wholly undercut the majority’s broad conclusion that Gross adopted a theory which

grants the “motivating factor” standard to Title VII discrimination claimants but

automatically denies it “to claimants under other civil rights statutes.” (Majority Op. at

9).

Because the tenets of statutory construction and case precedent eschew the

majority’s presumptions about Gross, we must complete the required task—a careful

examination of the ADA itself. We turn to the key wording of the ADA, the prohibition

on discrimination “because of” disability. 42 U.S.C. § 12112(a). We have already

explained that in 1989 Price Waterhouse defined these Title VII words to entail a

“motivating factor” standard that Congress subsequently codified into Title VII, through

the Civil Rights Act of 1991. 42 U.S.C. § 2000(e)-2(m). The ADA was passed in 1990,

between those events, containing explicit cross-references to Title VII’s powers,

remedies, and procedures.

Ignoring that context and declaring blanket applicability of Gross, the majority

assumes that the Supreme Court’s ADEA statutory analysis simply transfers to the ADA

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 27

and disposes of this case through the holding: “We cannot ignore Congress’ decision

to amend Title VII’s relevant provisions but not make similar changes to the ADEA.”

557 U.S. at 174. The majority’s analysis thus hinges on the Title VII amendments in the

Civil Rights Act of 1991. However, as the Supreme Court also noted, we must view

each statute in its own context. And here context is very important. The ADEA was

enacted in 1967, decades before the Price Waterhouse holding and without any explicit

cross-references to the major substantive provisions of Title VII. The ADA, on the other

hand, was conceived in 1990 by a Congress that was well aware of Price Waterhouse

and born into a legal context in which “because of” meant that a “motivating factor”

standard applied. And Congress assured that application by expressly including cross-

references to Title VII in the initial ADA language.

When the ADA was enacted in 1990, to implement its intended parallel between

the statutes, Congress explicitly linked the ADA to Title VII. Section 107(a) of the ADA

provides:

The powers, remedies, and procedures set forth in section 705, 706, 707,

709, and 710 of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-4,

2000e-5, 2000e-6, 2000e-8, and 2000e-9) shall be the powers, remedies,

and procedures this title provides to . . . any person alleging

discrimination on the basis of disability in violation of any provision of

this Act . . . .

42 U.S.C. § 12117(a). This express reference to Title VII emphasizes Congress’s

intention that the two statutes be interpreted the same way. Relying on the ADEA

analysis, the majority makes much of Congress’s decision not to place the words

“motivating factor” directly into the ADA in the 1991 amendments. But, in 1990,

Congress had already considered and resolved this proposition for the ADA when it

chose, instead, to link the two statutes so that they would always have the same standard:

An amendment was offered . . . that would have removed the

cross-reference to Title VII and would have substituted the actual words

of the cross-referenced sections. This amendment was an attempt to

freeze the current Title VII remedies (i.e., equitable relief, including

injunctions and back pay) in the ADA. This amendment was rejected as

antithetical to the purpose of the ADA—to provide civil rights

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 28

protections for persons with disabilities that are parallel to those available

to minorities and women. By retaining the cross-reference to Title VII,

the Committee’s intent is that the remedies of Title VII, currently and as

amended in the future, will be applicable to persons with disabilities.

H. Rep. No. 101-485 (III) at 48 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 471 (House

Report for the ADA). The date of passage, the different legal context, and the

intentionally different language of the ADA renders Gross’s analysis of the ADEA

simply inapplicable to the ADA.4

Though the textual analysis above and the legal context of the ADA’s passage

should be dispositive, the Civil Rights Act amendments do have a role in this case, albeit

not the one the majority presses. First, the amendments reinforce the availability of

mixed-motive claims under Title VII in the wake of the Supreme Court’s Price

Waterhouse decision. See 42 U.S.C. §§ 2000e-5(g)(2)(B), 2000e-2(m) (both expressly

referencing mixed-motive or motivating-factor claims). More importantly, Congress

used those amendments to codify the “motivating factor” standard into the ADA through

the Title VII provisions that it had previously incorporated into the ADA. See 42 U.S.C.

§ 12117(a) (incorporating enumerated Title VII sections). Those incorporated sections

include the “Enforcement Provisions” set out in section 706(g)(2)(B) of Title VII, which

directly reference the “motivating factor” standard. 42 U.S.C. § 2000e-5(g)(2)(B).

Thus, the Civil Rights Act implemented the prior Congressional decision by inserting

in Title VII, and thereby including in the ADA, the “motivating factor” language.

Because the ADA as enacted by Congress made available in ADA

actions for employment discrimination the very same remedies available

in Title VII actions, passage of the remedial amendments to Title VII had

the effect of amending the ADA as well.

4

Congress’s silence in amending the ADEA in the 1991 amendments may suggest the intentional

line-drawing of Congress between the ADEA and Title VII, which were not linked. However, given the

legal context of the ADA and its intentional linking to Title VII, that same silence for the ADA means the

opposite—it means Congress wanted to keep the existing system of treating ADA claims consistently with

Title VII claims.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 29

Rights of Americans with Disabilities (Americans with Disabilities Act of 1990, as

amended through 1991, 42 U.S.C. §§ 12101-12213), 5-22A Civil Rights Actions P

22A.01 (Matthew Bender & Co., Inc. 2011).

The majority ignores this express linkage, arguing that “incorporation of Title

VII’s enforcement ‘powers, remedies, and procedures’ into the ADA does not pull the

‘motivating factor’ standard along with them.” (Majority Op. at 11). But there is no

need to “pull” the “motivating factor” standard from Title VII into the ADA because

Congress had already chosen to use the words expressing that standard and had already

tied the ADA to Title VII in 1990. Simply put, the ADA is not the ADEA and the

majority is not free to treat the words of the ADA as if they exist in a vacuum. See Davis

v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“[S]tatutory language cannot be

construed in a vacuum. It is a fundamental canon of statutory construction that the

words of a statute must be read in their context and with a view to their place in the

overall statutory scheme.”).

Viewing the statute in context and in accordance with the tenets of statutory

construction, the ADA includes a right of recovery under a “motivating factor” standard.

For these reasons alone, I would join the majority of circuits that have interpreted the

ADA to allow a plaintiff to establish a claim by showing that his or her disability was

a motivating factor in an adverse employment decision.5 See, e.g., Pinkerton v.

Spellings, 529 F.3d 513, 518-19 & n.30 (5th Cir. 2008) (collecting cases).

Those reasons are further supported by legislative history. The majority finds

legislative history inapposite because appeals to it were unsuccessful in Gross. (Majority

Op. at 12). Once again, the history of the ADEA is not the history of the ADA. And a

further investigation of legislative history of the ADA makes it exceedingly difficult to

5

The Seventh Circuit, following the Supreme Court’s decision in Gross, has abrogated its prior

precedent holding that mixed-motive claims are viable under the ADA. Serwatka v. Rockwell Automation,

Inc., 591 F.3d 957 (7th Cir. 2010). In doing so it relied on the rationale that the ADA’s liability provision,

42 U.S.C. § 12112, does not explicitly reference “mixed-motive” or “motivating factor” claims as Title

VII does, see 42 U.S.C. § 2000e-2(m). I disagree with the failure in Serwatka to give the context of the

ADA’s enactment and its incorporation of Title VII’s mixed-motive remedies provision their proper

weight. Cf. Smith, 602 F.3d at 329 n.28 (distinguishing Serwatka and rejecting the Seventh Circuit’s

“broad view” of Gross). Therefore, I believe Serwatka is an incorrect interpretation of the ADA.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 30

support a view that limits the available recovery for disability discrimination as

compared to recovery for race, color, religion, sex, and national origin discrimination

under Title VII:

And they should be parallel. The remedies for victims of discrimination

because of disability should be the same as the remedies for victims of

race, color, religion, sex, and national origin discrimination. . . . The

remedies should remain the same, for minorities, for women, and for

persons with disabilities. No more. No less.

101 Cong. Rec. 2599, 2615 (daily ed. May 22, 1990) (statement of Rep. Edwards). As

a House Report for the ADA explained, “if the powers, remedies and procedures

changed in Title VII . . . , they will change identically under the ADA for persons with

disabilities.” H. Rep. No. 101-485 (III) at 48 (1990), reprinted in 1990 U.S.C.C.A.N.

445, 471. “[T]he purpose of the ADA [is] to provide civil rights protections for persons

with disabilities that are parallel to those available to minorities and women.” Id.

The remedies should be the same; no more, no less. The majority’s decision

makes an ADA plaintiff’s remedy decidedly less. Moreover, an incorporated remedy

that is made unavailable by the courts constitutes a failure to give meaning and effect to

the words Congress selected to include in the statute. This violates elementary tenets of

statutory construction: “[T]he inquiry begins with the fundamental purpose of judicial

construction of statutes, which is to ascertain and give effect to the original meaning of

the words used by Congress[.]” Appoloni v. United States, 450 F.3d 185, 199 (6th Cir.

2006). We thus “begin with the understanding that Congress ‘says in a statute what it

means and means in a statute what is says there.’” Hartford Underwriters Ins. Co. v.

Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (quoting Conn. Nat’l Bank v. Germain,

503 U.S. 249, 254 (1992)).

I believe the majority’s determination that a “but for” standard applies to the

ADA fails to honor the rules of statutory construction by which we are bound and

thereby fails to respect the clear intention of Congress. The plain language of the ADA,

the legal context of its passage, and the debate and commentary explicating

Congressional purpose all evidence the decision by Congress that the ADA is to be

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 31

interpreted and enforced in a manner parallel with Title VII, including its “motivating

factor” standard of liability. Because I believe the courts are not free to disregard that

Congressional instruction, I respectfully dissent.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 32

________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

________________________________________________

BERNICE B. DONALD, Circuit Judge, concurring in part and dissenting in part.

I concur with this Court’s welcome abandonment of its past interpretation of the

Americans with Disabilities Act, which read the word "solely” into the ADA's express

“because of” causation standard. I dissent, however, from the majority’s view that under

the ADA the plaintiff alone must shoulder the burden of persuasion as to causation. I

write separately, and at length, to describe an alternative approach to this controversy

which, I believe, accurately reflects the relevant legislative history and case law.

Now that we have recognized our error in importing language from the

Rehabilitation Act into the ADA without a proper basis, the notion of returning to the

plain statutory language of the ADA has a natural allure. Likewise, the call to resist

importing language from yet another statute, Title VII, appeals to our sense of symmetry

and order. But, although the plain language of the statute is the proper starting point in

any analysis, the meaning of even the simplest term cannot be fully ascertained without

taking into account the context, including historical and grammatical, in which it is

found.

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court

formulated a distinctive analytical approach to Title VII “mixed-motive” cases, i.e.,

those in which the parties to an employment discrimination action claim both legitimate

and illegitimate bases for the adverse employment decision. Setting aside the familiar

McDonnell Douglas/Burdine framework in this context, a fractured Court established

a two-step burden-shifting paradigm under which the plaintiff must first show by a

preponderance of the evidence that discrimination was a substantial or motivating factor

in the employment decision. Id. at 252. The burden of persuasion then shifts to the

employer, who, to escape liability, must show by a preponderance of the evidence that

“its legitimate reason, standing alone, would have induced it to make the same decision.”

Id.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 33

Although six justices joined in the Price Waterhouse judgment, there was sharp

division among them as to the proper characterization of Title VII’s “because of”

standard of causality. A plurality of the justices declared that to “construe the words

‘because of’ as colloquial shorthand for ‘but-for causation,’ . . . is to misunderstand

them.” Id. at 240. The plurality took the “words to mean that gender must be irrelevant

to employment decisions.” Id. Justice O'Connor, on the other hand, in her concurrence

with the judgment, “disagree[d] with the plurality's dictum that the words ‘because of’

do not mean ‘but-for’ causation; manifestly they do.” Id. at 262-63 (emphasis added). To

Justice O'Connor, the burden-shifting mechanism prescribed by the Court was an

appropriately balanced, equitable means of determining but-for causation, rather than a

substitute for it. As she described the approach,

the plaintiff must produce evidence sufficient to show that an illegitimate

criterion was a substantial factor in the particular employment decision

such that a reasonable factfinder could draw an inference that the

decision was made “because of” the plaintiff's protected status. Only then

would the burden of proof shift to the defendant to prove that the

decision would have been justified by other, wholly legitimate

considerations.

Id. at 278 (emphasis added).

According to O’Connor, this approach is warranted because at times a but-for test

imposed upon the plaintiff alone “demands the impossible.” Id. at 264 (quoting Malone,

Ruminations on Cause-In-Fact, 9 Stan. L. Rev. 60, 67 (1956)). Because the “deterrent

purpose of Title VII is disserved by a rule which places the burden of proof on plaintiffs

on the issue of causation in all circumstances,” id. at 278, O’Connor endorsed the

shared-burden evidentiary framework as applicable to “all disparate treatment plaintiffs

where an illegitimate consideration played a substantial role in an adverse employment

decision.” Id. at 279.

In its plurality opinion, two concurrences, and a dissenting opinion, Price

Waterhouse put forth at least four views on the definition of Title VII’s “because of”

standard. The Court, however, failed to arrive at a consensus on the matter. In place of

a definition, the Court provided a procedural mechanism that is triggered when a

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 34

challenged adverse employment decision was based on both illegitimate and legitimate

reasons.

In the wake of Price Waterhouse, and partially in response to it, Congress

amended Title VII, adopting much of the Court's terminology but replacing the decision's

procedural scheme with one of Congress's own making. Landgraf v. USI Film Prod., 511

U.S. 244, 251 (1994). The 1991 amendments retained the “because of” language in

defining what is forbidden:

It shall be an unlawful employment practice for an employer . . . to fail

or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin . . .

42 U.S.C. § 2000e-2(a)(1) (emphasis added). As to the evidentiary burden, the revised

statute provided that “[e]xcept as otherwise provided in this subchapter, an unlawful

employment practice is established when the complaining party demonstrates that race,

color, religion, sex, or national origin was a motivating factor for any employment

practice, even though other factors also motivated the practice.” Id. at § 2000e-2(m)

(emphasis added). Finally, a companion enforcement provision was added:

On a claim in which an individual proves a violation . . . and a

respondent demonstrates that the respondent would have taken the same

action in the absence of the impermissible motivating factor, the court

(i) may grant declaratory relief, injunctive relief . . . and attorney's fees

and costs . . . and (ii) shall not award damages or issue an order requiring

any admission, reinstatement, hiring, promotion, or payment . . .

Id. at § 2000e-5(g)(2)(B) (emphasis added).

Taken together, these three provisions represent both an acceptance and a subtle

retooling of the Price Waterhouse paradigm. Despite the Court’s failure to agree on a

definition of the statute’s “because of” standard, Congress retained this language

unaltered and undefined, in apparent recognition that it is not the definition of the term

but the associated procedures that matter (and in apparent agreement with Justice

White’s observation that “[i]t is not necessary to get into semantic discussions on

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 35

whether the [Court’s] approach is “but-for” causation in another guise”). See Price

Waterhouse, 490 U.S. at 259. The phrase “motivating factor” was adopted, not as the

first of a two-step liability determination but rather as the stand-alone causation standard

in proving liability. The “same decision” test was also adopted from the opinion, but as

an affirmative defense to damages rather than to liability.

The above-described alterations to Title VII appear at first glance to be

substantial. The appearance of significance, however, fades considerably upon close

examination. Under the new Title VII, a mixed motive plaintiff could prevail on a

“motivating factor” showing alone, but could not be awarded damages if the defendant

could convince the fact-finder that it would have made the same decision anyway. This

is, for all practical purposes, the same substantive outcome as under Price Waterhouse.

The only real difference is that attorney’s fees could be awarded to the plaintiff even

where but-for causation was disproved.

The majority reviews this history and declares that it leads to one of only two

possible views: Either 1) Price Waterhouse established the meaning of “because of” in

the panoply of anti-discrimination statutes with similar standards, and Congress ratified

this holding in its amendments to Title VII; or 2) The Title VII amendments effectively

nullified Price Waterhouse as it is applies to both Title VII and all other the civil rights

statutes.

The first of these two views is plainly off the mark. Price Waterhouse does not

define the “because of” standard but rather provides a procedural mechanism to be used

where this undefined standard applies. More importantly, Congress did not simply codify

the Price Waterhouse holding. Outright ratification would have meant incorporation of

the two-step burden shifting described in that decision. Alternatively, Congress could

have effected ratification by acquiescing in the Court’s interpretation and taking no

action at all. Instead, Congress departed from and expanded upon Price Waterhouse by

1) allowing liability under Title VII to be established by demonstrating that an

impermissible criterion was a motivating factor behind an employment decision and 2)

allowing certain remedies even when the employer has shown that it would have taken

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 36

the same action for legitimate reasons, so long as discrimination was a motivating factor.

Although, practically speaking, these changes do not make a great deal of difference,

they were important enough to Congress to warrant a complex modification of the statute

to distinguish the new procedural arrangement from that set forth in Price Waterhouse.

But the second view is not accurate either. Certainly the amendments supersede

the Price Waterhouse decision to the extent that the new Title VII’s standards and

remedies are different from those set forth in the decision. But the notion that these

amendments were intended to nullify Price Waterhouse’s application to other anti-

discrimination statutes is without any logical or historical foundation. As Judge Stranch

points out, Congress enacted the ADA the year after Price Waterhouse and the year

before the 1991 amendments. The ADA utilizes the same “because of” language that the

Court had just confronted and interpreted and it contains a provision explicitly linking

the statute to Title VII. And as Judge Stranch indicates, we must presume Congress was

well aware of the prevailing law at the time with regard to the interpretation of the

“because of” standard in civil rights cases, i.e., Price Waterhouse. The circumstances of

the ADA’s enactment thus effectively rebut the contention that Congress intended to

nullify Price Waterhouse as it applied to the ADA.

Although Price Waterhouse dealt with Title VII, various courts, for various

reasons, have found that its principles apply to cases brought under other anti-

discrimination statutes, like the ADA, containing the same “because of” standard. Parker

v. Columbia Pictures Indus., 204 F.3d 326, 336-37 (2d Cir. 2000) (collecting cases). Of

course, the Sixth Circuit is not among the courts that have found that mixed motive

analysis is appropriate under the ADA because the Court has been bound by the

aforementioned flaw in its reading of the statute, which the Court with the present

opinion now corrects. See Layman v. Alloway Stamping & Mach. Co., Inc., 98 F. App’x

369, 376 (6th Cir. 2004) (“Despite the persuasive textual argument and the weight of

authority from other circuits, this court has established a standard to which this panel is

bound.”).

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 37

I believe the relationships among Price Waterhouse, Title VII, and the other civil

rights statutes to be considerably more nuanced than the majority indicates. I therefore

offer below my own list of tenable views of the relevant history, based upon actual

positions taken by the various circuit courts, along with an analysis of the merits of each.

1) Price Waterhouse burden shifting applies to the ADA: Under this view,

Price Waterhouse was nullified in 1991 as to Title VII mixed motive discrimination

claims but not as to similar claims brought under other civil rights statutes with causation

standards parallel to that of Title VII prior to the 1991 amendments.

2) “Motivating factor” is the causation standard under the ADA, based

solely on an analysis of the “because of” standard’s “plain meaning”: In the view of

some courts, the effective causation standard found in the various civil rights statutes is

the same as the Title VII standard, not because of importation or linkage of concepts

from one statute to another, but based solely on the shared “because of” language. The

issue of burden shifting is often left unaddressed under this view.

3) Neither Price Waterhouse nor Title VII standards apply to the ADA.

Because the statute lacks explicit mixed-motive language, the ADA’s “because of”

standard means “but for” causation. According to at least one court, and in the view

of the majority, under the ADA the plaintiff must prove that disability was the but-for

cause of the challenged adverse employment action; the burden of persuasion does not

shift to the employer to show that it would have taken the action regardless of disability.

4) “Motivating factor” is the causation standard for liability under the ADA

and the “same decision” test applies to remedies, owing to the ADA’s incorporation

provision. According to this view, the explicit link between the ADA and Title VII

incorporates both the “motivating factor” and the “same decision” tests into the ADA,

giving the statutes identical standards and remedies in perpetuity.

Each of these, more or less, distinct views is examined in detail in what follows.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 38

The Continuing Applicability of Price Waterhouse View

Since shortly after the Price Waterhouse decision was rendered and Congress

responded by amending Title VII, the lower courts have confronted whether the mixed-

motive frameworks apply in the context of other civil rights statutes. From 1992 through

1996, a number of circuit courts determined (or assumed) that Price Waterhouse applied

to Title VII retaliation claims, even though the statutory provisions governing such

claims relied on an independent, unembellished “because of” standard and lacked any

mixed-motive, burden-shifting language. See, e.g., Tanca v. Nordberg, 98 F.3d 680, 681

(1st Cir. 1996) (holding that while Title VII’s mixed motive provisions do not apply to

Title VII retaliation claims, the Price Waterhouse burden-shifting rule does); see also

Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 893 (7th Cir.1996); Miller v. CIGNA Corp.,

47 F.3d 586, 596 n. 8 (3d Cir.1995); Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858,

863 (5th Cir. 1993); Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039-41 (2d Cir.

1993); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993); Kenworthy v.

Conoco, Inc., 979 F.2d 1462, 1470-71 (10th Cir. 1992).

In subsequent years, other courts have explicitly extended Price Waterhouse’s

reach well-beyond the Title VII context, often with little or no analysis. See Brown v. J.

Kaz, Inc., 581 F.3d 175, 182 (3d Cir. 2009) (finding that in a § 1981 claim involving

mixed motives, “[w]e focus on the mixed motives analysis under Price Waterhouse);

Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135-36 (8th Cir. 1999) (“To trigger Price

Waterhouse analysis [under the ADA], a plaintiff must show that ‘an impermissible

motive played a motivating part in an adverse employment decision.’”).

More often than not though, courts have applied a mixed motive analysis without

indicating whether the analysis came from, or was justified by, Price Waterhouse or the

1991 Title VII amendments. See Garrison v. Baker Hughes Oilfield Operations, Inc.,

287 F.3d 955, 965 (10th Cir. 2002) (quoting a Title VII case in support of applying

mixed motive analysis in an ADA context: “A mixed motive instruction is ...

appropriate in any case where the evidence is sufficient to allow a trier to find both

forbidden and permissible motives.”); Thomas v. Contoocook Valley Sch. Dist., 150 F.3d

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 39

31, 42 (1st Cir. 1998) (assuming that either Price Waterhouse or Title VII mixed motive

analysis applies to the ADA, but declining to decide which).

Based upon this long history of applying Price Waterhouse’s mixed motive

analysis beyond the confines of Title VII discrimination suits, there was, until recently,

every reason to think this analysis had continuing applicability to the ADA. This was a

sensible conclusion, as there is nothing in the Price Waterhouse analysis of the “because

of” standard and the associated evidentiary burden that pertains uniquely to Title VII;

the opinion’s principles are sweeping and broadly applicable. Further, as previously

discussed, Congress’ enactment of the ADA immediately after Price Waterhouse was

decided gives rise to a reasonable inference that Congress intended for the Court’s

interpretation of the “because of” standard to apply to the ADA.

In 2009, however, the Supreme Court cast considerable doubt upon the

applicability of mixed-motive analysis to statutes other than Title VII. In Gross v. FBL

Financial Services, the Court raised sua sponte the question of whether the Age

Discrimination in Employment Act of 1967 (ADEA) authorized a mixed-motive age

discrimination claim. 557 U.S. 167, 169 (2009). The Court concluded that it does not.

Id. After a cursory examination of the relevant case law and statutory history, the Court

examined the ADEA’s causation standard and determined that “because of” means that

a plaintiff must prove by a preponderance of the evidence “that age was the ‘but-for’

cause of the challenged employer decision.” Id. at 178. Furthermore, the “burden of

persuasion does not shift to the employer to show that it would have taken the action

regardless of age, even when a plaintiff has produced some evidence that age was one

motivating factor in that decision.” Id. at 180. To those who would consider the Price

Waterhouse controlling, the Court indicated that Price Waterhouse was so fraught with

problems in application that there was no “perceivable benefit to extending its

framework to ADEA claims.” Id. at 179. The Court also expressed grave doubt as to

whether it would “have the same approach were it to consider the question [raised in

Price Waterhouse] today in the first instance.” Id. at 178-79.

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The Court does not go so far as to abrogate Price Waterhouse, but it certainly

signals that the Court might do so if the opportunity presented itself. And, although the

holding addresses only the ADEA, its stark language leaves little doubt that the present

Court shares little of Justice O’Connor’s concern that placing the burden of proof

entirely on the plaintiff’s shoulders “demands the impossible” and disserves the deterrent

purpose of Title VII.

Because Gross addressed only the ADEA, there is a strong argument that the

Price Waterhouse burden-shifting doctrine remains controlling law outside of the ADEA

context.1 Still, the shadow of Gross is long and troubling. See Bolmer v. Oliveira, 594

F.3d 134, 148 (2d Cir. 2010). This Court can hardly be faulted for being reluctant to

hang its judicial hat on such a wobbly peg.

“Because of” Equals “Motivating Factor”: The Plain Language View

As previously mentioned, many mixed-motive decisions have adopted a

“motivating factor” standard with minimal analysis, finding this interpretation “under

a plain reading of the statute.” Pinkerton v. Spellings, 529 F.3d 513, 516-17 (5th Cir.

2008). As a preliminary matter, I take issue with any characterization of this difficult

subject as plain or obvious. If the issue had been simple, the Supreme Court would not

have labored over it so long and unsuccessfully in Price Waterhouse.

Emblematic of this approach is Head v. Glacier Northwest, Inc., 413 F.3d 1053

(9th Cir. 2005). The court first rejected “solely because of” as the appropriate causation

standard under the ADA, just as we have. Id. at 1065. The court then concluded that a

motivating factor standard is most consistent with the “plain language” and the purposes

of the statute, holding that “the ADA outlaws adverse employment decisions motivated,

even in part, by animus based on a plaintiff’s disability or request for an

accommodation.” Id. Finally, the court provided “Jury instructions required under the

ADA” reflective of its holding:

1

At least one court, the Fifth Circuit, has taken a stand along these lines, declaring that Price

Waterhouse still controls Title VII retaliation claims post-Gross, in keeping with that court’s longstanding

precedent. Smith v. Xerox Corp., 602 F.3d 320, 329-30 (5th Cir. 2010).

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 41

[A]lthough the statute uses “because of” language, the ADA plaintiff

need not show more than that impermissible motives were a “motivating

factor” in any adverse action. The approach also reflects the fact that the

evidence in a particular case may not suggest more than one possible

reason for the challenged action.

Under the first alternative . . . if the judge determines that the only

reasonable conclusion the jury could reach is that discriminatory animus

is the sole reason for the challenged action or that discrimination played

no role in the decision, the jury should be instructed to determine whether

the challenged action was taken “because of” the prohibited reason.

The second alternative applies in a case in which the evidence could

support a finding that discrimination is one of two or more reasons for

the challenged decision, at least one of which may be legitimate. In that

case the jury should be instructed to determine whether the

discriminatory reason was “a motivating factor” in the challenged

action.

Id. at 1065-66 (emphasis added).

What is striking, and in my view alarming, about these jury instructions is that

there is no hint of either the balanced burden-shifting approach of Price Waterhouse or

the modified approach of the present-day Title VII. Motivating factor is the causation

standard, and apparently the end of the story.2 This view of the motivating factor

standard is entirely untethered from its historical moorings and dispenses, without

justification, the backstop provided by the “same decision” test.

Perhaps the court in Head was fully aware that it was omitting a step. Perhaps

it intentionally addressed only the issue of liability, leaving unspoken but implied the

determination of damages, which would require giving the defendant the opportunity to

2

The Head jury instructions, provided here in their entirety, are extracted from an earlier Ninth

Circuit Title VII decision, Costa v. Desert Palace, 299 F.3d 838 (9th Cir. 2002), aff’d, Desert Palace v.

Costa, 539 U.S. 90 (2003). In Costa, the court held that “the jury should be instructed to determine first

whether the discriminatory reason was a ‘motivating factor’ in the challenged action.” Id. at 856-57

(emphasis added). “[I]f the jury then finds that the employer has proved the ‘same decision’ affirmative

defense by a preponderance of the evidence, 42 U.S.C. § 2000e-5(g)(2)(B), the employer will escape the

imposition of damages and any order of reinstatement, hiring, promotion, and the like, and is liable solely

for attorney's fees, declaratory relief, and an order prohibiting future discriminatory actions.” Id. at 857.

Head omits this second portion of Costa, leaving the reader to conclude that whether discrimination was

a “motivating factor” is the only issue to be decided by the finder-of-fact.

No. 09-6381 Lewis v. Humboldt Acquisition Corp. Page 42

show it would have taken the same action absent any discriminatory animus. But there

is no evidence of such awareness or intention and the omission invites considerable

misunderstanding.

Whatever causation standard this Court adopts, our opinion should provide clear

instruction as to how that standard is to be applied procedurally. I conclude that it is

insufficient, and perilous, to simply declare that, under the ADA, “because of” means

“motivating factor,” without also setting forth the second half of the Price

Waterhouse/Title VII formula.

“Because of” Equals “But-for”: The Other Plain Language View

In Gross v. FBL Financial Services, Inc. the Supreme Court examined the “plain

language” of the ADEA’s “because of” standard and concluded that “a plaintiff must

prove that age was the ‘but-for’ cause of the employer’s adverse decision.” 557 U.S. 167,

176 (2009). What is most noteworthy about Gross is not this conclusion that “but-for”

is the proper causation standard. After all, Justice O’Connor’s Price Waterhouse

concurrence concluded the same thing. Price Waterhouse, 490 U.S. at 262-63. It is the

Court’s conclusion that no burden shifting is allowed that marks the decision’s real

importance. According to Gross, the burden of proof is the plaintiff’s alone. Id. at 180.

For the last three years, the lower courts have grappled with the implications of

Gross outside of the ADEA context. Particularly noteworthy is a recent Seventh

Circuit’s decision concluding that Gross’s holding applies with full force to actions

brought under the ADA: “a plaintiff complaining of discriminatory discharge under the

ADA must show that his or her employer would not have fired him but for his actual or

perceived disability; proof of mixed motives will not suffice.” Serwatka v. Rockwell

Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010) (emphasis added).

The court examined and rejected the view that Price Waterhouse’s interpretation

of Title VII’s “because of” standard should apply to the ADA. Id. at 961. Just as the

majority does here, the court adapted Gross’s reasoning and concluded that “a mixed-

motive claim will not be viable under that statute.” Id.

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Gross’s rejection of mixed-motive analysis under the ADEA is predicated on a

statement made early on in the opinion: “Because Title VII is materially different with

respect to the relevant burden of persuasion, . . . [the Court’s Title VII decisions] do not

control our construction of the ADEA.” 557 U.S. at 173. This reasoning simply does not

withstand scrutiny applied to the ADA. Although Title VII is now different from the

ADA “with respect to the relevant burden of persuasion,” at the time the ADA was

enacted, and thus the time Congress was expressing its intent, the standards were the

same. Serwatka’s repudiation of Price Waterhouse mixed motive analysis under the

ADA is thus contrary to the relevant statutory history and represents a radical departure

from established law.

The Seventh Circuit’s decision to discard its own precedent and return to a time

before Price Waterhouse is insufficient reason for this Court to do likewise. Although

some may argue that the decision anticipates where the Supreme Court is headed with

regard to the ADA, this Court’s duty is to apply the law as it is, not as it might someday

be.

The Explicit Link View

Although the ADA is a separate and distinct statute from Title VII, the ADA does

not contain its own enforcement provisions. Instead it incorporates the “powers,

remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and

2000e-9" of Title VII. 42 U.S.C. § 12117(a). The five provisions referenced in this

incorporating provision are summarized as follows:

42 U.S.C. 2000e-4 (Equal Employment Opportunity Commission):

Sets forth the powers, composition, etc. of the EEOC.

42 U.S.C. 2000e-5 (Enforcement Provisions): Describes powers of the

EEOC to prevent unlawful employment practices, cross-referencing the

definitions of such practices in 2000e-2 and 2000e-3; describes process

of filing charges with the EEOC and related State or local enforcement

proceedings; sets forth the rules for filing related civil actions; and

specifies the remedies available to the plaintiff in such actions.

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42 U.S.C. 2000e-6 (Civil Actions by the Attorney General): Sets forth

the procedures under which the Attorney General may bring action

against employer engaged in unlawful employment practices.

42 U.S.C. 2000e-8 (Investigations): Describes evidentiary issues

pertaining to charges filed under 2000e-5.

42 U.S.C. 2000e-9 (Conduct of hearings and investigations pursuant

to section 161 of Title 29): Links the EEOC’s powers to that of the

National Labor Relations Board.

The only provision among these five related to remedies is § 2000e-5. The only

subsection pertaining to the issues before this Court is § 2000e-5(g)(2)(B), which

provides certain relief and prohibits other relief under specific circumstances.

Most of the circuit courts that have reviewed the matter have either assumed or

concluded that the ADA incorporates the entire procedural scheme from Title VII: the

“motivating factor” standard for liability expressed in § 2000e-2(m) and the “same

decision” defense to damages set forth in § 2000e-5(g)(2)(B). See Doane v. City of

Omaha, 115 F.3d 624, 629 (8th Cir. 1997) (recognizing that 42 U.S.C. §§ 2000e-2(m)

and 2000e-5(g)(2)(B) apply in actions brought pursuant to the ADA); see also Baird ex

rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999); Buchanan v. City of San Antonio,

85 F.3d 196, 200 (5th Cir. 1996); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301

(8th Cir. 1995).

The Serwatka v. Rockwell Automation, Inc. decision by the Seventh Circuit

challenges the assumptions implicit in these decisions. 591 F.3d 957, 962 (7th Cir.

2010). The court notes that Title VII’s motivating factor test appears in the statute’s

liability section, 2000e-2(m). The ADA’s incorporation of “powers, remedies, and

procedures” does not directly reference this provision and, Serwatka reasons, the

“motivating factor” standard is therefore not incorporated into the ADA. Id.

The question that Serwatka leaves inadequately addressed is this: If the ADA’s

incorporation provision does not incorporate the motivating factor test, what does it

incorporate with regard to remedies in civil suits? To answer this question, we must

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scrutinize more closely 42 U.S.C. 2000e-5(g)(2)(B), keeping in mind that the ADA

provides no other enforcement or remedies provision:

On a claim in which an individual proves a violation under section

2000e-2(m) of this title and a respondent demonstrates that the

respondent would have taken the same action in the absence of the

impermissible motivating factor, the court--

(i) may grant declaratory relief, injunctive relief (except as provided in

clause (ii)), and attorney's fees and costs demonstrated to be directly

attributable only to the pursuit of a claim under section 2000e-2(m) of

this title; and

(ii) shall not award damages or issue an order requiring any admission,

reinstatement, hiring, promotion, or payment, described in subparagraph

(A).

This provision does two things: it permits certain relief (declaratory and

injunctive relief and attorneys fees) and it prohibits other relief (e.g., damages,

reinstatement orders). But this permitting and prohibiting is within a very narrow

context, i.e., when the employee has demonstrated that discrimination was a motivating

factor in the adverse employment decision under § 2000e-2(m) and the employer has,

in turn, proven that he would have made the same decision had discriminatory animus

not been a factor.

By incorporating this provision into the ADA, Congress effectively declared that

ADA plaintiffs are entitled to the remedies (and the limits on remedies) described

therein. Since these remedies have meaning only in the context just described, it is more

than reasonable to assume that the entire context, meaning both the motivating factor test

and the same decision test, is also incorporated into the ADA. This conclusion is

underscored by the fact that 2000e-2(m), the motivating factor test for liability, is

expressly referenced (twice) in this expressly incorporated provision.

Serwatka bases its contrary assumption on a quote from a law student note

stating, “The motivating factor amendment [to Title VII] is not a power, remedy, or

procedure; it is, instead, a substantive standard of liability.” 591 F.3d at 962 (quoting

John L. Flynn, Note, Mixed-Motive Causation Under the ADA: Linked Statutes, Fuzzy

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Thinking, and Clear Statements, 83 Geo. L.J.2009, 2042 (1995)). What this statement

ignores is that Title VII’s remedies provision assumes the application of its substantive

standard of liability. Perhaps more importantly, to effectively edit out the reference to

2000e-2(m) is to render Title VII’s only remedies section devoid of meaning as to the

ADA, nullifying Congress’s clearly expressed intent to incorporate into the ADA Title

VII’s remedies. Under the most basic rules of statutory construction, such a reading is

impermissible. See Broad. Music, Inc. v. Roger Miller Music, Inc., 396 F.3d 762,

769 (6th Cir. 2005) (“Courts are to make every effort to interpret provisions so that other

provisions in the statute are not rendered inconsistent, superfluous, or meaningless.”);

see also Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1981) (Scalia, J.,

concurring in the judgment) (stating that the Court’s task is to give meaning to the law

in a way that avoids producing an absurd result). The only interpretation of the ADA’s

incorporation provision that does not render its incorporation of § 2000e-5(g)(2)(B)

meaningless is that the ADA incorporates Title VII’s two-part burden-shifting

framework.

Conclusion

To construe the debate over the ADA’s causation standard as a war over two

catch-phrases – “but-for” and “motivating factor”– is to misunderstand the real nature

of the issue. If the definition of “because of” were truly what was at issue here, we would

have to conclude that Justice O’Connor in Price Waterhouse and Justice Thomas in

Gross are in complete agreement, for they both opined that “because of” means “but-

for.” But of course these opinions are diametrically opposed to one another. Price

Waterhouse held that the plaintiff’s burden of persuasion is limited to showing that

discrimination was a substantial factor in an adverse employment decision, with the

burden then shifting to defendant to rebut the presumption of but-for causation. Gross

held that, under the ADEA at least, the burden of proof to establish but-for causation is

plaintiff’s alone.

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It is worth noting that some courts have actually defined “motivating factor” and

“but-for” as meaning precisely the same thing. In a case often cited in support of the

“motivating factor” viewpoint, the Seventh Circuit stated,

To be a motivating factor, then, the forbidden criterion must be a

significant reason for the employer’s action. It must make a difference in

the outcome of events that it can fairly be characterized as the catalyst

which prompted the employer to take the adverse employment action,

and a factor without which the employer would not have acted.

Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34 (7th Cir. 1999) (emphasis

added). In other words, a motivating factor is a but-for cause. See Black’s Law

Dictionary 212 (7th ed. 1999) (defining but-for cause as “[t]he cause without which the

event could not have occurred.”).

Viewed in this light, the question before the Court is really not about causation

standards at all, but about the appropriate sharing of the burden of proof. Were it not for

the ADA’s provision linking it to Title VII’s remedial scheme, I would conclude that

Price Waterhouse established the appropriate burden-shifting paradigm applicable to the

ADA’s “because of” standard. By linking the two statutes, however, Congress apparently

intended the modest revision of Price Waterhouse’s burden-shifting to apply to both

Title VII and the ADA. Accordingly, I would hold that for actions brought under the

ADA, “motivating factor” is the applicable causation standard for establishing liability,

with the “same decision” test operating as an affirmative defense to a claim of damages.

Because I believe it trades one overreaching interpretation of the statute for another, I

respectfully dissent from the majority’s importation of Gross’s but-for causation

standard into the ADA.