A hot area of the Americans with Disabilities Act jurisprudence is the question of mixed motive. That is, can a plaintiff get a mixed motive jury instruction in Americans with Disabilities Act cases, or for that matter in Rehabilitation Act cases as well, in light of Gross v. FBL Financial Services? Previously, we have discussed this extensively (see the link). However, this question goes beyond whether you can simply get a jury instruction for mixed motive. Other permutations include if motivating factor does not exist, does the indirect method of proof vis-à-vis McDonnell Douglas apply to Americans with Disabilities Act cases; and can you allege more than one cause of action if you are limited to showing but for causation. With respect to the first question, the legislative history of the ADAAA clearly states that the indirect method of proof is still meant for Americans with Disabilities Act cases.
With respect to the second question, a case that answers this question is Pearson v. Lawrence Medical Center 2012 WL 5265774 (N.D. Alabama October 24, 2012). In this case, the plaintiff was a 59-year-old man with diabetes and high blood pressure. Id. at *1. The company hired an interim CEO who within two months was promoted to CEO and thereby became the plaintiff’s direct supervisor. Id. at *2. Eventually, the plaintiff needed to visit his doctor more frequently because he was having difficulty with his insulin pump and also because he required a stress test to determine how well a stent implanted in his heart was working. Id. Things went from bad to worse. The new CEO told the plaintiff that he needed someone 20 years younger to perform the duties of the job and that he did not like him missing work to attend doctor’s appointments. Id.. He placed the plaintiff on a performance improvement plan for three months, but instead of letting him finish out the performance improvement plan, terminated him within one week. Id. Plaintiff filed suit alleging violations of the Family and Medical Leave Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. The defendant’s view was that Gross meant that the plaintiff had to elect the law he was going to proceed under since motivating factor was not, in the defendant’s view anyway, a possibility under the Americans with Disabilities Act. Id. at *2-3.
The court’s, northern district of Alabama, reasoning is very interesting. First, they note that there are cases that say you would have to elect the remedy, but that they found such cases to be illogical. Id. at *3. The court noted that a sole cause standard is not the same thing as a but for standard. Id. at *4. The court said that a sole cause is a necessary cause, but a necessary cause does not have to be a sole cause. Id. That is, a particular result may have two or more necessary causes and in the court’s view, Gross is not to the contrary. Id. Therefore, if a plaintiff alleges causes of action involving different causation standards (motivating factor per title VII or but for under the Age Discrimination in Employment Act or the Americans with Disabilities Act), it would still be possible for the plaintiff to prove motivating factor or substantial factor while also being able to show but for causation with respect to the statutes requiring but for linkage. Id.
So, what does this all mean? It means a few things. First, if a plaintiff is faced with alleging causes of action with different causation standards (motivating factor and but for), they will be able to file a claim alleging violations of laws with different causation standards. Second, the discussion of necessary cause and how it differs from sole cause, allows for a plaintiff to file multiple causes of action even if both statutes (for example, the Age Discrimination in Employment Act and the Americans with Disabilities Act), use but for causation.
Finally, from reading the case law, it is very clear that plaintiffs are very interested in mixed motive while the defense is very interested in not allowing mixed motive to go forward. However, I recently attended the national convention of the American Bar Association section on labor and employment law. During that convention, I heard a very distinguished panel (a defense attorney, a plaintiff attorney, and a federal judge), respond to a question about mixed motive. In response to that question, it was suggested as a possibility that mixed motive may actually work against plaintiffs. That is, jurors may have a difficult time with the concept of mixed motive and that but for causation is much more manageable. Also, as seen in the discussion of the case that is the subject of this blog entry, but for causation can be presented in such a way so that it is not confused with sole cause. This presentation that I attended has you wondering whether the lawyers do not in fact have it backwards. That is, should plaintiff just allow but for to prevail? It is certainly counterintuitive. For that reason, I am not sure I see the end of litigation with respect to mixed motive and plaintiffs wanting to be able to use the principal and defendants not wanting plaintiffs to be able to use the concept.