Ninth Circuit Requires Proof of “But For” Causation for Claims Under Americans with Disabilities Act

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Stoel Rives - World of EmploymentOn August 20, the Ninth Circuit Court of Appeals in a case entitled Murray v. Mayo Clinic, joined four other Circuit Courts of Appeal in holding that a “but for” causation standard applies in ADA discrimination claims.  This standard is considered to make it more difficult for employees to prove discrimination claims than what had been applied previously and is referred to as “a motivating factor standard.”  The court reasoned that this change was required to comport with two earlier United States Supreme Court rulings that had adopted a similar standard based on similar statutory language found in the federal law prohibiting age discrimination in employment.

Using this new standard, ADA discrimination plaintiffs bringing a claim under 42 U.S.C. § 12112, which bars discrimination “on the basis of disability,” must now show that the adverse employment action would not have occurred but for the disability discrimination.  Under the former standard, a jury could have found an employer had violated the ADA even if the employer proved that it had a “mixed motive” for the adverse action, i.e., both legitimate and illegitimate reasons.

While employers can rejoice about this important change, any celebration should await review of their applicable state disability discrimination practice.  Many states have adopted standards that are different from what is afforded by this recent interpretation of federal law.  Indeed, employees in those states may eschew federal claims in favor of a more liberal state law cause of action.   Because employees can, and most often do bring claims under both federal and state law, juries will now face the unenviable task of applying two different legal standards that could yield different results:  no liability under federal law, but liability under state law.

We asked the lawyers in some of Stoel Rives’ offices to explain how this change might impact state law regarding disability discrimination is in their respective states:

Amy Joseph Pedersen in our Portland office notes that Oregon’s disability statute is construed consistently with the ADA and Oregon law uses language identical to Title I of the ADA—barring discrimination “on the basis of disability.”  Historically, Oregon courts have used a “substantial factor” test for these types of claims.  Amy does not believe that Oregon courts will adopt the “but for” standard for state disability claims, and because a “substantial factor” test is easier for plaintiffs to meet, plaintiffs will be more likely to prevail on state law disability claims than those made under federal law.

Chris Wall in our Seattle office says that the Murray decision is unlikely to have much day-to-day impact for Washington employers, because few claims in Washington are brought under the ADA—most plaintiffs rely on state law.  Washington courts have expressly rejected a “but for” standard for claims brought under the Washington Law Against Discrimination (“WLAD”).  Washington courts require plaintiffs to prove only that their protected characteristic was “a substantial factor” in the allegedly discriminatory employment action.  While Washington courts consider federal decisions as “persuasive,” Washington courts have noted that some WLAD provisions are “radically different” from federal law.  Washington courts interpret the WLAD with “liberal construction” and find that “the WLAD provides greater employee protections than its federal counterparts.”  Accordingly, Washington employers should take little solace in the Murray decision.

According to Matt Durham, Utah law the Utah Antidiscrimination Act prohibits discrimination “because of” protected status, including disability.  While no cases have directly addressed the causation standard in the context of disability discrimination, Utah courts have generally articulated the burden of proof on causation as a showing that a “discriminatory reason more likely motivated” the employer than the reasons proffered by the employer.  Although Utah courts sometimes look to federal case law to interpret state law, they are unlikely to depart from the current causation standard as a result of Murray. .

Jim Shore says that Alaska law prohibits discrimination “because of” disability.  Alaska courts have interpreted “because of” to mean that plaintiffs need only show that their protected class was a “motivating factor” in the discrimination.  Jim thinks that the Murray decision, as well as the Supreme Court case law it is based on, provides employers with a strong argument that disability discrimination claims under Alaska law require proof that the disability was the “but for” cause of the termination.

According to Bryan Hawkins in our Sacramento office, California’s ADA equivalent—the Fair Employment and Housing Act—requires that plaintiffs prove that the discrimination occurred “because of” their disability.  California courts have interpreted this to require proof the disability was a substantial motivating factor behind the discrimination, rather than simply a motivating factor.  This puts California’s standard somewhere between the “motivating factor” standard and the “but for” standard.  With that being said, most California plaintiffs plead violations of the Fair Employment and Housing Act rather than the ADA, so Bryan doesn’t believe Murray will provide California employers with much (if any) relief.

Jim Dale in our Boise office says that Idaho almost always looks to federal law in interpreting the Idaho Human Rights Act, which prohibits disability and other forms of discrimination.  While federal and Idaho law do have some differences, those relate primarily to which employers are covered and what damages are available.  Accordingly, Jim sees the Ninth Circuit’s decision as clarifying how juries will be instructed on this point, generally benefiting employers.

While much has been made about whether the current administration’s appointment of federal judges has the potential to impact precedent, it is worth noting that this decision was authored by a District Judge who sat by designation with two other longstanding members of the Ninth Circuit.  Regardless of how your state law may apply, the Murray decision is a favorable precedent for employers in the Ninth Circuit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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