At the top of the legal resources section on this page, you will see a link to an article that I wrote regarding whether a mixed motive jury instruction is available under the Americans with Disabilities Act. A mixed motive jury instruction is an instruction that says that liability can exist if the plaintiff can show that the adverse action was motivated by discrimination based on the protected characteristic, in this case disability. If the defense can show that they would have taken the adverse action anyway despite being motivated by the disability, then the remedies that the plaintiff can receive are limited. Mixed motive comes from title VII of the Civil Rights Act. The question is whether a mixed motive jury instruction is possible under the Americans with Disabilities Act. Until Gross v. FBL Financial Services, 557 U.S. 167 (2009), mixed motive was certainly in play for Americans with Disabilities Act cases. However, the Gross decision said that because the age discrimination in employment act used the term, “because of,” for its causation standard and that the age discrimination act did not explicitly link to mixed motive provisions of the Civil Rights Act, then it has to be assumed that “but for” would be the standard for causation under the age discrimination in employment act. This created the question as to whether the same logic would apply to the Americans with Disabilities Act. Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (seventh Cir. 2010) says that the same logic does apply.

I recently made a presentation to the DuPage County Bar Association where I expanded on the article to cover whether mixed motive jury instruction was dead under the Rehabilitation Act and the retaliation provisions of the Americans with Disabilities Act. With respect to the Americans with Disabilities Act prior to the ADAAA, a strong argument can be made that a mixed motive jury instruction is indeed dead. With respect to the Americans with Disabilities Act after the ADAAA the answer to that question is far more unclear. In that situation, as discussed in the article, an argument can be made that a mixed motive jury instruction is not dead. With respect to retaliation, the retaliation provisions have the same problems in it that existed with respect to the Americans with Disabilities Act prior to the amendments act. Therefore, it is quite possible that a mixed motive jury instruction is dead with respect to retaliation under title I and title II of the Americans with Disabilities Act. With respect to title III of the Americans with Disabilities Act and retaliation, a mixed motive jury instruction would most certainly be dead because the remedies for violations of title III in no way suggests that a mixed motive jury instruction could be in play. With respect to the Rehabilitation Act, due to the “solely by reason of disability,” language contained in that act for the causation standard, a mixed motive jury instruction is most certainly dead.

But is a mixed motive jury instruction dead under the Americans with Disabilities Act prior to the ADAAA? Lewis v. Humboldt Acquisition Corporation, Inc., _ F.3d _, 2012 WL 1889389 (sixth Cir. May 25th, 2012), raises the question that a mixed motive jury instruction may not be dead even under the Americans with Disabilities Act prior to the amendments act. In that case, the Sixth Circuit sitting en banc, said that “sole cause,” was not the standard for causation for Americans with Disabilities Act cases. The majority opinion adopted the aforementioned Serwatka opinion held that “but for,” was the proper standard. However, what is interesting is that there were multiple opinions where the judges concurred and dissented at the same time. In those opinions, they raised the question as to whether for claims that came into existence prior to the ADAAA, a mixed motive jury instruction might still be possible. Those opinions based their conclusions upon legislative history, the link to the mixed motive remedies section, as well as on the traditional interpretation of what “because,” traditionally meant in civil rights cases.

So what is a lawyer that represents either the plaintiff or the defendant to do? What is a corporation to do? That is, from the plaintiff point of view, it would be much better if they had the ability to argue that a mixed motive jury instruction was in play. Especially in employment, it can be very hard to show either “sole cause” or “but for”. In light of Lewis , the defense or a Corporation now has to consider that the Gross decision may not extend to Americans with Disabilities Act cases the way that Serwatka anticipates. In short, thanks to Lewis, an argument now exist that with respect to Americans with Disabilities Act cases prior to the ADAAA a mixed motive jury instruction may be in play. The Lewis concurring and dissenting opinions also raise the question as to whether a mixed motive jury instruction would also be in play with respect to retaliation claims under title I or title II of the Americans with Disabilities Act.

In short, the way it breaks down with respect to whether mixed motive jury instructions are in play might look like this. Under the Americans with Disabilities Act prior to the amendments act, probably not available but thanks to Lewis maybe it is; under the Americans with Disabilities Act after the amendments act, a mixed motive jury instruction for the reasons stated in the article, is probably in play for title I and title II cases but not for title III cases. With respect to retaliation cases under title I or title II of the Americans with Disabilities Act either before the amendments act or after the amendments act, the answer is that a mixed motive jury instruction is probably dead (See Palmquist v. Shinseki _ F.3d_ 2102 WL 3125131 (first Cir. August 2, 2012), but not necessarily, again thanks to Lewis; with respect to the Rehabilitation Act, a mixed motive jury instruction is most certainly dead.

All of this informs litigation strategy. If the concurring and dissenting opinions of Lewis wind up ruling the day, then you may also see an impact with respect to how companies go about their termination decisions involving persons with disabilities. This case bears watching. No doubt, it will ultimately go to the US Supreme Court, where it is anybody’s guess as to what they will do.

Defense argument tip: if the defense is faced with a retaliation claim, they can argue that since, “because” appears in the retaliation section of the statute, that Gross prevails, especially since when it comes to non-retaliation claims Congress put in, “on the basis” for the causation standard. What this means, is that the defense winds up conceding that mixed motive applies in non-retaliation cases, but by doing so creates a stronger argument that mixed motive does not apply in retaliation cases because Congress must have known what it was doing when it did not trade out “because,” from the retaliation sections of the statute and did trade the words out in the non-retaliation section of the statute.

6 Responses to Is a Mixed Motive Jury Instruction Dead under the Americans with Disabilities Act? Rehabilitation Act?

There are a couple of updates to this blog entry. First, readers of this blog entry will most definitely be interested in this blog entry in case you have not read it yet; it is consistently one of my top 10 blog entries every quarter. Second, there is this case from the Seventh Circuit decided October 6, 2015, which specifically says, “it is an open question whether the 2008 amendment to the ADA, which changed the operative causation language from “because of” to “on the basis of,” altered the substantive standard.” The court goes on to note that in this particular case the issue was not briefed by the parties and in any event the answers would not affect the outcome so that it wasn’t necessary to resolve the issue (Seventh Circuit finding enough evidence to support causation even under Serwatka. Arroyo involved USERRA and ADA claims with the Seventh Circuit reversing the District Court’s granting of summary judgment and cost to the defendant on both the USERRA (USERRA specifically uses motivating factor for causation in its statutes), and ADA claims.

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