- The U.S. Supreme Court declined April 27 to take up a case that would resolve the question of what, specifically, a plaintiff bringing an Americans with Disabilities Act (ADA) lawsuit must prove.
- The 9th U.S. Circuit Court of Appeals last year held that a district court correctly instructed a jury to apply a "but for" causation standard, rather than a motivating factor standard in a doctor's ADA suit filed against the Mayo Clinic. Michael Murray failed to meet the but-for standard — that is, that his firing would not have happened but for his disability, it concluded (Murray v. Mayo Clinic, No. 17-16803 (9th Cir. June 13, 2019)). Murray unsuccessfully argued that he had to show only that his disability was a motivating factor behind the termination. He asked the High Court to review the 9th Circuit's decision but it declined.
- According to a blog post by Littler attorneys, several other circuits have adopted the but-for test for ADA claims, and there may also be a "burgeoning trend amongst circuit courts to incorporate this heightened standard into other types of employment law claims." Similarly, the 9th Circuit noted in its Murray opinion that "circuits have retreated from the motivating factor standard of causation in ADA cases.”
It's of course more difficult for an employee to prove that his or her disability was the sole reason for an adverse employment action, rather than simply one factor of many. But the courts' movement in this direction doesn't necessarily mean employers should let their guards down.
For one thing, not all circuits have adopted the "but for" test for ADA cases. More broadly, because the law was expanded in 2008, experts have recommended that employers focus on accommodation rather than the law's eligibility requirements and burdens of proof.
This means cultivating an inclusive and diverse workplace, training employees and supervisors on the applicable state and federal anti-bias laws, and working with employees to come up with suitable reasonable accommodations.
Experts also recommend that managers maintain thorough documentation regarding performance problems, coaching and any accommodation requests. Should it come to litigation, such efforts can make or break an employer's defense, employment attorneys say.