"But-for" causation test governs disability discrimination cases

The Second Circuit holds for the first time that plaintiffs who bring disability discrimination cases under the Americans with Disabilities Act and the Rehabilitation Act must show the discrimination was the "but-for" cause of the adverse action. The Court of Appeals therefore rejects the more plaintiff-friendly "motivating factor" calculus that governs cases brought under Title VII.

The case is Natofsky v. City of New York, issued on April 18. Plaintiff brought this case under the Rehabilitation Act and not the ADA. But in order to determine the burden of proof under the Rehabilitation Act, the Court must determine the scope of the ADA, since Congress said in 1992 that employment discrimination cases brought under the Rehabilitation Act apply the ADA causation standard. Since the Second Circuit has not yet determined the causation test under the ADA, it has to make that determination in the course of interpreting the Rehabilitation Act.

The ADA says you cannot discriminate against someone "on the basis of disability." What does that mean? Does the "but-for" test apply, or does Title VII's "motivating factor" test apply? In 1991, when Congress amended Title VII, it explicitly adopted the motivating factor test for cases involving race, gender, religion and national origin discrimination. It did not use that language for age discrimination cases brought under the ADEA, which is why the Supreme Court in the Gross case in 2009 said the "because of" language in the ADEA requires proof of "but-for" discrimination and not the motivating factor test. (Whether or not Congress actually intended for the ADEA to have a heightened causation test than Title VII is another question; my best guess is that Congress probably thought "motivating factor" and "because of" meant the same thing, but that is water under the bridge, as the Supreme Court's statutory analysis said these phrases have different meaning, and Congress has not corrected the inconsistency). The Supreme Court a few years later in the Nasser case said that "the text of an anti-discrimination statute must expressly provide for a 'motivating factor' test before that test can be applied." This means that even retaliation cases under Title VII require "but-for" proof, since the retaliation provision of Title VII does not use "motivating factor" but "because of."

The Second Circuit (Keenan [D.J.] and Walker, with Chin dissenting) says the "because of language" in the ADEA means the analysis in Gross applies, so that disability discrimination plaintiffs have to prove the discrimination was the "but-for" cause of the adverse action. This makes it a little harder to win disability discrimination cases in the Second Circuit, as everyone agrees that "motivating factor" is a lower burden of proof. The real-world consequences of this holding are hard to predict. I am not sure the "motivating factor" and "but-for" distinction will make a difference on a summary judgment motion, as parsing that out is like dancing on the head of a pin, but it could factor into the jury instructions and push the deliberations toward the employer, as the "but-for" test is more defendant-friendly than "motivating factor," which is not a 50% causation test like the "but-for" test. Since we interpret the ADA this way, the Rehabilitation Act is also interpreted this way.

Judge Chin dissents. He notes in part that when Congress enacted the ADA in 1990, it expressly wanted that statute to be interpreted consistently with Title VII. When Congress amended the ADA in 2008 to deal with some misguided Supreme Court rulings that narrowly interpreted the statute, it again said it wanted "a broad scope of protection to be available under the ADA." What we got here is a battle of statutory analysis involving the most commonly-used anti-discrimination statutes on the books.

These different interpretations affect how the Court of Appeals views Natofsky's case. Remember him? It was Natofstky who brought this case that led to the extended discussions about what the Rehabilitation Act and the ADA really mean. In the next blog post, I will talk about his case in particular, though here's a hint: he loses the appeal, though he would have won had Judge Chin had another like-minded judge on the panel.