One of my more popular blog entries is the blog entry discussing University of Texas Southwestern Medical Center v. Nassar. In that blog entry, I talked about how that decision necessarily means that mixed motive jury instructions are available with respect to ADA title I (non-retaliation) claims. We now have a case, Siring v. Oregon State Board of Higher Education ex rel. Eastern Oregon University, _ F. Supp. 2d _, 2013 WL 5636718 (D. Or. October 15, 2013), saying exactly that.

There were a few different issues before the court, but for our purposes the question is whether University of Texas Southwestern Medical Center v. Nassar changed the causation standard so as to not allow for a mixed motive jury instruction in a title I case. Before proceeding further, it is important to note that no ADA retaliation claim was at issue in this case. Also, it is important to note that the court did say that but for causation was the standard for Rehabilitation Act claims because of the “solely by reason of disability,” language that appears in that law.

The court reasoned that the Supreme Court in the aforementioned decision, had not changed the causation standard for ADA title I claims, which in the Ninth Circuit allowed for mixed motive jury instructions. The court reasoned as follows:

1. The amendments act to the ADA dropped “because,” in favor of “on the basis of disability,” as the causation standard.

2. The amendments act to the ADA was done specifically for the purpose of broadening the scope of the ADA after the Supreme Court had interpreted the ADA narrowly.

3. The court referred to the legislative history regarding “on the basis of,” which, as we have talked about before, says that the ADA is meant to mirror the structure of nondiscrimination protection found in title VII of the Civil Rights Act. That legislative history, as we have mentioned before, also talks about how indirect evidence and mixed motive cases should be permitted under the ADA discrimination causes of action.

4. The court also noted plaintiff’s argument stating that under Nassar motivating factor applies to status-based claims, which a title I ADA suit most certainly is.

5. The court concluded that the ADA discrimination provision is substantially more similar to title VII status-based discrimination than to the retaliation provision, and accordingly, existing precedent in the Ninth Circuit, which uses motivating factor, had to be respected.

Takeaways: I don’t view this decision as remarkable. The key being that there was no ADA retaliation claim in this case. For the reasons mentioned above, which we have also discussed in other blog entries and which I also discuss in the latest edition of my book, the Nassar decision compels the conclusion reached by the court in Siring. Also, as we have talked about previously as well, the fact that the Rehabilitation Act requires a but for causation standard is also not remarkable because of the specific statutory reference in that law, “solely by reason of disability.”