Seventh Circuit Nixes Mixed-Motive Theory for ADA Discrimination Claims

By: Mark Wilkinson

The Seventh Circuit Court of Appeals recently determined in Serwatka v. Rockwell Automation Inc. that those who claim discrimination under the Americans with Disabilities Act (“ADA”) must prove that disability bias was the sole or “but-for” cause of the employment action taken against them.  Under the 1991 amendments to Title VII of the Civil Rights of 1964 (“Title VII”), an individual claiming discrimination under that statute could still recover some relief even if an illegal motive did not constitute the sole basis for the challenged employment action; i.e., the employer made the decision based on both unlawful and legitimate considerations—it had a mixed-motive. Courts have extended Title VII’s mixed-motive theory to other anti-discrimination statutes, including the ADA.

The use of the mixed-motive theory in claims under statutes other than Title VII is now under attack in the courts. The Supreme Court decided last year in Gross v. FBL Financial Services Inc. that because the Age Discrimination in Employment Act (“ADEA”) did not include a provision like that in Title VII which specifically allows for a mixed-motive theory of recovery, those claiming relief under the ADEA had to prove that age was the sole cause of a discriminatory employment action. Relying on Gross, the Seventh Circuit overruled its own precedent to conclude that because the statutory language of the ADA does not specifically allow for mixed-motive recovery, an ADA claimant must prove that disability was the but-for cause of the discriminatory employment action.

The Serwatka decision portends well for employers and signals most likely the end of mixed-motive recovery in the Seventh Circuit for claims brought under anti-discrimination statutes other than Title VII. The court wrote that “unless a statute . . . provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden in all suits under federal law.” The Seventh Circuit covers Wisconsin, Illinois, and Indiana. This boon for employers, however, may only be short-lived. In the last few years, Congress has shown an increased willingness to amend anti-discrimination statutes to counteract court decisions it dislikes. Take, for instance, the ADA Amendments Act passed in 2008 and the Lilly Ledbetter Fair Pay Act in 2009. Congress has already introduced legislation that would undo Gross and specifically endorse the use of the mixed-motive theory—not only under the ADEA—but for all anti-discrimination statutes that make no mention of the burden of proof needed to prevail. Presently, that bill remains in committee and has not been voted on by either the House of Representatives or the Senate.

Also, the Serwatka court made clear that its decision did not have any application the ADA Amendments Act because the case arose under the prior version of the ADA. The ADA Amendments Act changed the language of the ADA to prohibit discrimination “on the basis of disability”—where before the amendment the ADA prohibited discrimination “because of” disability. While this distinction seemingly should not matter, employee advocates will no doubt argue that Serwatka does not entirely settle the availability of mixed-motive recovery under the ADA Amendments Act.

We will keep you up to date on the developments here as they unfold.