It pains me to report that the Seventh Circuit today rules out mixed-motive liability under the ADA, citing Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009). It holds that 42 U.S.C. § 12117 incorporates into the ADA only the “powers, remedies, and procedures” of Title VII, and not the mixed-motive liability section of 42 U.S.C. § 2000e-2(m).
Serwatka v. Rockwell Automation Inc., No. 08-4010 (7th Cir. Jan. 15, 2010): This case was tried to a jury with a mixed-motive liability form, and jury found both that “regarded as” disability was a motivating factor, but the employee would have been terminated anyway. The district court, applying the remedies under 42 U.S.C. § 2000e-5(g)(2)(B), awarded the plaintiff declaratory relief, an injunction that the judgment for plaintiff be placed in her personnel file, and 20% of her attorney’s fees and costs ($30,658.11, reduced from the amount of $153,290.54).
The panel reverses and remands with a direction to enter a judgment for the defendant. It observes that in the light of Gross, discrimination statutes outside of Title VII (as amended by the 1991 Civil Rights Act) — absent express statutory language to the contrary — demand proof of “but-for,” or “determining factor,” liability. The ADA does not contain a mixed-motive section corresponding to Title VII. The panel noted that the ADA does selectively incorporate sections of Title VII through 42 U.S.C. § 12117, which adopts the “powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9.” Yet the panel holds that the mixed-motive language of Title VII — which appears in a different section (2000e-2) — is not thereby incorporated: “although section 12117(a) cross-references the remedies set forth in section 2000e-5(g)(2)(B) for mixed motive cases, it does not cross-reference the provision of Title VII, section 2000e-2(m), which renders employers liable for mixed-motive employment decisions.”
And so, unless Congress adopts the pending bill in Congress to add mixed-motive liability into the other anti-discrimination and -retaliation statutes, Title VII remains an island unto itself.