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Mixed Motive Analysis for Disability Discrimination Nixed by the Seventh Circuit

In a recent newsletter article, (click HERE for article), we wrote about the Supreme Court’s pro-employer holding in Gross v. FBL Financial Services. In that case, the Court held that the mixed-motive analysis applied to Title VII claims did not apply to claims brought under the Age Discrimination in Employment Act (“ADEA”). While Title VII expressly recognizes mixed-motive cases, the Court found that the language of the ADEA does not and, rather, requires a plaintiff to show that age was the reason for the adverse employment act. This holding provides good news for employers facing age claims because the standard announced means that plaintiffs must do more than show that age was one factor among several that led to the adverse employment action.

It now appears that the same analysis may be applied to at least some disability discrimination cases. In late 2008, Congress enacted the ADA Amendments Act of 2008 which took effect January 1, 2009. Prior to the amendments, the ADA prohibited discrimination “because of” disability. The revised version prohibits discrimination “on the basis of disability.” In a January 15, 2010 decision, Serwatka v. Rockwell Automation, Inc., the Seventh Circuit (the federal circuit for Indiana) applied the same analysis from Gross, held that the mixed motive analysis does not apply to claims brought under the pre-amendments version of the ADA, and that, as such, a plaintiff in a pre-January 1, 2009 disability discrimination claim must show that disability was the reason for the adverse employment act.

It is important to note that the Court did not make any ruling as to whether the mixed motive analysis would be available in a claim under the amended version of the ADA. Further, the Court did not determine whether the language “on the basis of disability,” found in the amended version of the act, means anything different than “because of disability.” As such, it is not yet clear whether a plaintiff will be able to succeed on a mixed motive case under the new version of the ADA.

Finally, given the rulings in both Serwatka and Gross, it is very possible that Congress will amend the language of ADEA and the ADA to permit mixed-motive cases.

If you have any questions about the ADA, the recent mixed-motive rulings or any other employment litigation issues, please contact the labor and employment attorneys at Bingham McHale.

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