Cat's Paw Liability Arguably Not An Option In ADA Cases In The 6th and 10th Circuits

In my last post, I discussed the Sixth Circuit’s recent decision in Lewis v. Humboldt Acquisition Corp., which upheld the current Sixth Circuit standard that a plaintiff must show that his or her disability was the “sole reason” for the adverse employment action; sometimes referred to as the “solely” standard.  Of the ten circuits to consider the issue, eight apply a “motivating factor” (or “substantial cause”) test, under which a plaintiff must only show that a disability was a motivating factor of the adverse employment action. 

In response to my post, I received a message from Brian D. Hall, who edits the excellent Employer Law Report asking if I agree that the Lewis decision reduces the risk of Cat’s Paw liability in ADA cases in the Sixth Circuit.  I recently blogged on the Supreme Court’s Cat’s Paw case.  Having considered the two cases together, I believe that at least for now, the Sixth Circuit’s use of the “solely” standard lessens the risk of Cat’s Paw liability.  I would apply the same reasoning to the Tenth Circuit, which also uses the “solely” standard. 

In the Supreme Court’s Cat’s Paw case, Staub v. Proctor Hospital, the Court limited its holding to USERRA but noted that USERRA’s “motivating factor” causation standard is “very similar to Title VII.”  Thus, it is reasonable to expect this decision to be applied to other statutes that employ a “motivating factor” causation standard, e.g. Title VII and in most circuits, the ADA.  The ADEA requires “but for” causation so age discrimination claims should be outside the Staub decision.  Extending that argument, ADA claims in the Sixth and Tenth Circuits should also be outside the Staub decision since they require that a disability be the “sole reason” for adverse employment action. 

It is worth noting that in his Staub opinion, Justice Scalia referenced only Title VII, not the ADA.  This may well have been because of the split in the Circuits regarding the causation standard.  The ADA itself bars employers from “discriminat[ing] against a qualified individual with a disability because of the disability of such individual 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).  Title VII prohibits employment discrimination “because of … race, color, religion, sex, or national origin” and states that such discrimination is established when one of those factors “was a motivating factor for any employment practice, even though other factors also motivated the practice.”  42 U. S. C. §§2000e–2(a), (m).  Thus, the ADA is not as clear as Title VII as to the critical “motivating factor” language.  The issue of what is meant by “because of” in the ADA is open for some debate as demonstrated by incongruous views of the Sixth and Tenth Circuits and most of the other circuits on the subject. 

The origin of the Sixth Circuit’s view on this subject is a footnote from the 1995 case of Maddox v. Univ. of Tennessee, which reads in its entirety:

The ADA parallels the protection of the Rehabilitation Act, prohibiting employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees." 42 U.S.C. Sec. 12112(a).  The district court held that its reasoning with respect to the Rehabilitation Act claim applied with equal force to the ADA claim. We agree and will therefore review the respective claims accordingly.

Under the Rehabilitation Act, "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a).  Thus, the Sixth Circuit position is based on a premise that the analysis of claims under the ADA parallels those brought under the Rehabilitation Act.  Obviously, other circuits disagree with this approach and take the position that “because of” is satisfied when a disability is merely a “motivating factor.”

For now, there is a sound argument that Cat’s Paw liability is not available in ADA cases in the Sixth and Tenth Circuits because the theory is premised upon mere influence upon the decision maker, who has non-discriminatory reasons for his or her actions.  Under these circumstances, it would be impossible for the employee’s disability to be the “sole reason” for the adverse action.  One final thought on this topic – it seems to me that the Lewis v. Humboldt Acquisition Corp. case with it’s straightforward facts and single legal issue might make an excellent case for the Supreme Court to consider if it wishes to address the causation standard for the ADA. 

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