In the space of ten days, two circuits issue decisions rejecting a “sole cause” jury instruction under different federal acts. The en banc Sixth Circuit unanimously sweeps away prior circuit law requiring proof under the ADA that disability was the “sole” cause of the discrimination – vacating the jury’s verdict under such an instruction – though the judges ultimately divide over what the correct causation standard ought to be. In the D.C. Circuit, the panel rejects a “sole factor” instruction in a Title VII case, distinguishing a prior published decision, but affirms the defense verdict on the ground that the jury charge was overall correct.
Lewis v. Humboldt Acquisition Corp., No. 09-6381 (6th Cir. May 25, 2012) (en banc): The Sixth Circuit had long been an outlier among the U.S. Courts of Appeals in holding that a plaintiff in an ADA case had to prove that disability was the “sole” basis for an adverse decision, borrowing from Rehabilitation Act of 1973 case law. In this case, which was fully tried to a jury under a “sole reason” instruction, the en banc Sixth Circuit finally – and unanimously – drops this rule (and remands for a new trial). “Our interpretation of the ADA not only is out of sync with the other circuits, but it also is wrong. Since Maddox, Congress has amended the Rehabilitation Act and the ADA several times, but the distinction between the causation standards used by the two laws persists . . . . That leaves us with two laws with two distinct causation standards.”
But the court splits 9-7 on the proper causation standard, with a bare majority holding that the ADA discrimination provisions are governed by the “but for” standard of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), instead of the lower-threshold “motivating factor” standard of Title VII. The plaintiff had sought an instruction that disability need only constitute a “motivating factor,” borrowing from Title VII, 42 U.S.C. § 2000e-2(m) and 42 U.S.C. § 2000e-5(g)(2)(B)).
The court majority holds that the ADA did not incorporate the more-liberal Title VII standard of liability, citing Gross and the Seventh Circuit:
“No matter the shared goals and methods of two laws, it explains that we should not apply the substantive causation standards of one antidiscrimination statute to other anti-discrimination statutes when Congress uses distinct language to describe the two standards. Just as we erred by reading the ‘solely’ language from the Rehabilitation Act into the ADA based on the shared purposes and histories of the two laws, supra at 7, so we would err by reading the ‘motivating factor’ language from Title VII into the ADA. Shared statutory purposes do not invariably lead to shared statutory texts, and in the end it is the text that matters. The one circuit to address the ADA/Title VII question after Gross has taken the same path. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961-62 (7th Cir. 2010).”
That the ADA expressly incorporated 42 U.S.C. § 2000e-5 to furnish administrative procedures to enforce the law does not help, holds the majority, because the ADA did not also selectively incorporate 42 U.S.C. § 2000e-2, where the “motivating factor” language appears.
The majority thus holds that, parallel to the ADEA under Gross, a disability-discrimination plaitnff must prove that disability was the “but for” cause of his or her termination (or other adverse action).
Seven judges dissented in three separate opinions. Judge Clay dissented in part (joined by Judge Martin), writing an opinion declaring the “but for” standard to be unduly stringent: “[U]nder the but-for standard, the plaintiff is obligated to prove that without the disability, her allegedly poor performance would not have been enough to motivate her employer to terminate her. In practice, a plaintiff will rarely discover objective evidence of her employer’s state of mind or internal motivations that would satisfy this extremely heavy burden. The plaintiff must instead resort to conjectural inquiry of the employer’s thoughts and purposes, which the employer can simply and succinctly reject by offering a myriad of other subjective reasons for her termination.”
In a second partial dissent authored by Judge Stranch, joined by Judges Moore, Cole, and White), the panel drew interpretive strength from the history of the passage of the ADA during the same period when Congress considered the Civil Rights Act enacted in 1991:
“Though the textual analysis above and the legal context of the ADA’s passage should be dispositive, the Civil Rights Act amendments do have a role in this case, albeit not the one the majority presses. First, the amendments reinforce the availability of mixed-motive claims under Title VII in the wake of the Supreme Court’s Price Waterhouse decision. See 42 U.S.C. §§ 2000e-5(g)(2)(B), 2000e-2(m) (both expressly referencing mixed-motive or motivating-factor claims). More importantly, Congress used those amendments to codify the ‘motivating factor’ standard into the ADA through the Title VII provisions that it had previously incorporated into the ADA. See 42 U.S.C. § 12117(a) (incorporating enumerated Title VII sections). Those incorporated sections include the ‘Enforcement Provisions’ set out in section 706(g)(2)(B) of Title VII, which directly reference the ‘motivating factor’ standard. 42 U.S.C. § 2000e-5(g)(2)(B). Thus, the Civil Rights Act implemented the prior Congressional decision by inserting in Title VII, and thereby including in the ADA, the ‘motivating factor’ language.”
Finally, Judge Donald (in a solitary separate opinion) would hold that the ADA’s express incorporation of 42 U.S.C. § 2000e-5(g)(2)(B) can only make sense if Congress meant for the same shifting burdens-of-proof to apply under both the ADA and Title VII.
Ponce v. Billington, No. 11-5117 (D.C. Cir. May 18, 2012): Plaintiff presented a promotion case, where he alleged race, sex and national origin discrimination –
“Appellant Jorge Ponce, a Cuban American male, applied for a position as Director of the Library of Congress’s Office of Workplace Diversity but was passed over in favor of Deborah Hayes, an African American female. Although Hayes received the highest interview scores out of the sixteen finalists for the position, she lacked some credentials that Ponce possessed, such as a master’s degree in Library Science and experience working as a librarian.”
The jury charge on causation was a bit muddled –
“Mr. Ponce bears the ultimate burden proving intentional discrimination in violation of Title VII. The Library is not required to prove that it did not intentionally discriminate. In order to carry this burden of proof, Mr. Ponce must prove that illegal discrimination on the basis of race and/or national origin and/or sex was the sole reason for his non selection. That is he must prove that but for his race and or but for his national origin and or but for his sex, he would have been hired by the Library.” [Emphasis added.]
The plaintiff complained that the jury ought to have been instructed strictly to decide whether the non-promotion was “because of” a prohibited Title VII factor. The district court felt itself bound, though, by Ginger v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008), which used the “sole factor” formula. The jury gave its verdict to the Library of Congress.
The D.C. Circuit affirms. The panel does backtrack from the dicta in Ginger that implies that the standard of proof in a federal employee case under 42 U.S.C. § 2000e-16(a) requires proof that an unlawful factor was the “sole” cause of the adverse decision:
“We thus take this opportunity to clarify: nothing in Title VII requires a plaintiff to show that illegal discrimination was the sole cause of an adverse employment action. And mindful that “our words from loose using have lost their edge,” Ernest Hemingway, Death in the Afternoon 63 (Scribner Classics 1999) (1932), we hereby banish the word “sole” from our Title VII lexicon.”
The panel also affirms that a plaintiff need not elect a method of proof (“but-for” or “mixed motives”) at the commencement of the case, but must “[a]lthough a plaintiff need not plead a precise theory of causation in the complaint, at some point he must place the employer and court on notice as to the ory or theories under which he intends to proceed.”
Ultimately, though, the panel holds that the verdict may be affirmed. Although the instruction used the erroneous “sole cause” language, that term was otherwise defined by the charge as “but for,” the practical equivalent of the Title VII statute itself. The district court holds, as well, that it was not reversable error in this case to withhold a mixed-motive instruction under 42 U.S.C. § 2000e-2(m), because there was no evidence in the record that the plaintiff ever asked for one.