By Leila G. O’Carra
Since 1995, a plaintiff making an ADA claim in the Sixth Circuit could succeed only by proving that an employer based an adverse decision “solely” on the plaintiff’s disability. That changed on May 25, 2012, with the Sixth Circuit’s opinion in Lewis v. Humboldt Acquisition Corporation, Inc., Case No. 09-6381, reducing the plaintiff’s burden from “sole factor” to “but-for” causation.
Plaintiff Susan Lewisworked as a registered nurse for Humboldt Manor Nursing Home (“Humboldt”). According to Lewis, about a year after Humboldt hired her, she developed a condition that affected her ability to walk and required her occasional use of a wheelchair. Humboldt fired Lewis in March 2006, because, Humboldt alleged, Lewis had an “outburst” at work, yelling and criticizing her supervisors. Lewis claimed that the real reason for the termination was her disability, and she filed suit in the United States District Court for the Western District of Tennessee.
On the plaintiff’s ADA claim, the district court instructed the jury that Lewis could recover only if her disability was the “sole reason” for her termination. The jury found for the defendant, concluding that Humboldt considered factors other than Lewis’s disability, and Lewis appealed.
On appeal, Lewis argued that the district court should have instructed the jury to find in her favor if she proved that her disability was a “motivating factor” in Humboldt’s decision. Under a “motivating factor” analysis, a plaintiff may succeed at trial upon proving that her disability was one factor that the employer considered, even though the employer also had legitimate reasons for firing her. In contrast, the “sole factor” standard used by the district court required Lewis to prove that her disability was the only reason for Humboldt’s termination decision. A panel of the Sixth Circuit upheld the district court’s use of the “sole factor” standard, explaining that it was bound by precedent, but invited Lewis to seek rehearing en banc, strongly suggesting that the full Sixth Circuit would reverse the district court’s decision. Lewis v. Humboldt Acquisition Corporation, Inc., 634 F.3d 879, 881 at n. 4 (6th Cir. 2011) (“Of course, after this panel issues its opinion,Lewis may still move for rehearing en banc…”). And that is exactly what happened.
Writing for the majority, Judge Sutton explained: “The longer we have stood by [the “sole factor”] 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.” Upon rejecting the “sole factor” test, the Court was left with the question of what standard of proof to apply in ADAcases. Relying on the reasoning in the United States Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167 (2009), the Sixth Circuit held that “[t]he ADEA and the ADA bar discrimination ‘because of’ an employee’s age or disability, meaning they prohibit discrimination that is a ‘but-for’ cause of the employer’s adverse decision.”
While the Court unanimously rejected the “solely” standard, seven of the sixteen judges that heard the case would have applied a “motivating factor” standard to ADA claims, rather than the more onerous “but-for” standard endorsed by the majority of the Court. One of the proponents of the “motivating factor” standard, Judge Stranch, wrote in a footnote that “this case is about the ADA language prior to the Congressional revisions in 2008. Thus, only the pre-2008 statute is before this Court…[and] any conclusions offered on the current ADA are dicta.” Judge Stranch’s observation may be her attempt to limit the majority’s holding and leave the door open for application of the “motivating factor” standard to the current version of the ADA.
In Lewis’s wake, employers in the Sixth Circuit must be mindful of the new “but-for” standard of proof, and the potential for an even more plaintiff-friendly “motivating factor” standard, when making decisions regarding litigation and settlement of ADA claims.