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9th Circuit Holds the “but for” Causation Standard Applies to Ada Discrimination Cases

Author: Orlando Arellano

Guest Editor: Aydin Emami

September 11, 2019 10:00am

A recently decided appeal in the 9th Circuit held the correct causation standard to apply in discrimination cases under the Americans with Disabilities Act (“ADA”) is the “but for” standard rather than the “motivating factor” standard.   While not exactly a sea change in employment law, this decision is a welcome relief from the tidal wave of anti-employer statutes and case law in California.

In Murray v. Mayo Clinic et al. (August 20, 2019) 2019 S.O.S. 17-16803, Michael J. Murray sued his former employer for discrimination in violation of the ADA.  He claimed he was terminated on the basis of his disability.  At trial, Murray requested jury instructions to say he only had to show his disability was a “motivating factor” in his termination (in other words, his disability not need be the only, or even main reason he was terminated).  Murray relied on the 9th Circuit decision in Head v. Glacier Northwest, Inc. (9th 2005) 413 F.3d 1053, in which the 9th Circuit joined with several other federal districts in holding the “motivating factor” causation standard applies to ADA discrimination claims.  The defendants disagreed.  They requested jury instructions to say Murray would have to prove “but for” his disability, he would not have been terminated.

The trial court held the “but for” causation was the correct standard based on a post-Head decision by the United States Supreme Court in Gross v. FBL Financial Services, Inc. (2009) 557 U.S. 167.  In Gross, the Supreme Court was dealing with the causation standard in a claim under the Age Discrimination in Employment Act (“ADEA”).  The Supreme Court held the language in the ADEA saying it was illegal to discriminate against an employee “because of” his or her age meant the applicable causation standard was the “but for” standard.  In other words, the employee would need to prove that he or she would not have been discriminated against but for his or her age.  The Supreme Court declined to apply the “motivating factor” standard that had been used in other types of federal discrimination cases.

Four years after Gross, another Supreme Court case involving discrimination was decided — University of Texas Southwestern Medical Center v. Nassar (2013) 570 U.S. 338.  Nassar involved a retaliation claim on the basis of race under Title VII.  The Nassar decision held that the retaliation section in Title VII did not have the same mixed motive language (“motivating factor”) found in the discrimination section.  Nassar further held this suggested the proper causation standard for retaliation claims in Title VII was the “but for” standard.

The Gross and Nassar cases reflected the Supreme Court’s inclination to apply a “but for” causation standard in the absence of clear legislative intent to allow a mixed motive standard.  It is under this backdrop that the 9th Circuit decided the Murray appeal.  In doing so, the 9th Circuit in Murray held Head was no longer good law and had been abrogated:

“Because Head’s reasoning is clearly irreconcilable with Gross and Nassar, we overrule Head’s holding that a plaintiff bringing a discrimination claim under Title I of the ADA need show only a disability was a motivating factor of the adverse employment action. We hold instead, an ADA discrimination plaintiff bringing a claim under 42 U.S.C. § 12112 must show the adverse employment action would not have occurred but for the disability.” Murray at 11.

The 9th Circuit in Murray noted the ADA, like the retaliation section of the ADEA, had no language specifically endorsing the mixed motive standard and instead required the discrimination be “because of” a disability.  Therefore, the appropriate standard was the “but for” causation standard.

Employers facing discrimination claims need all the help they can get these days, especially in California.  The Murray decision is well-reasoned and will give employers a little more leverage in cases where the employer has an appropriate reason for terminating an employee, who later claims to have been terminated based on his or her disability.

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