By Brandi O. Brown, J.D.
The Second Circuit ruled that the “but-for” causation standard applies to discrimination and failure-to-accommodate claims brought under the Rehab Act, rather than the motivating-factor standard that was previously applied.
Addressing an issue of first impression, the Second Circuit ruled that the “but-for” causation standard applied to the Rehab Act disability discrimination and failure-to-accommodate claims of an employee who alleged he experienced several adverse employment actions because of his hearing disability, including his eventual demotion. Affirming on different grounds the grant of summary judgment against those claims, the appeals court followed the dictates of Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar and rejected the lower court’s application of a “sole reason” standard, as well as the employee’s argument that the motivating factor standard applied. Judge Chin dissented (Natofsky v. City of New York, April 18, 2019, Keenan, J.).
Awards and complaints. In 2012 the employee, who has had a severe hearing impairment since infancy, was hired as the Director of Human Resources and Budget at a starting salary of $125,000. Although he wears hearing aids, to fully understand what someone is saying he has to be focused and able to read lips. He also speaks more slowly and less perfectly than the average individual.
In 2013, he received two performance-related awards and in December his second level supervisor, a commissioner, informed him that his salary was being increased by $4,000 for good performance. In addition to performance awards, however, in 2013 the employee received some complaints from his direct supervisor, a deputy commissioner. She complained that he needed to follow up on emails more quickly, that she wanted him to arrive at work at a different time, and that he needed to submit fewer leave requests. The latter two requests were withdrawn after a meeting between the employee, the deputy commissioner, and the commissioner.
Demotion and resignation. By February, the commissioner had been replaced as the result of a mayoral transition, although the employee’s first-level supervisor remained the same for a time. A new commissioner and chief of staff came on board, the latter of whom stared at the employee’s ears the first time they met. The employee testified that a few weeks later, he told the chief of staff about his hearing disability and she shook her head and rolled her eyes in response. Thereafter, and under the new leadership, the deputy commissioner prepared a counseling memorandum for the employee, addressing deficiencies in his performance.
Resigned after demotion. After a meeting with the new commissioner, the commissioner complained about both the employee and the deputy commissioner. Moreover, the chief of staff thought the employee was “clueless.” The next month, the deputy commissioner resigned rather than take a job with a reduced salary, but before leaving she provided the employee with a written evaluation of his overall work performance in which she rated him as a two out of five and gave him a “needs improvement” rating in half of the categories. That same month, the employee was demoted. He protested and although the salary cut was partially readjusted, he remained in the demoted position. In December he resigned.
Lower court proceedings. He filed suit under the Rehab Act, alleging discrimination, retaliation, and failure to accommodate. The district court granted the employer’s motion for summary judgment, holding that no reasonable jury could conclude the employee had suffered an adverse employment action “solely by reason of” his disability. It also ruled that he failed to establish his accommodation and retaliation claims. The employee appealed.
‘But-for’ causation standard applies. The appeals court affirmed, although on different grounds. The employer argued in favor of the standard applied by the district court—the “solely by reason of” standard—but also argued that if that standard did not apply, then the “but-for” causation standard from Nassar did. The employee, however, argued that the “motivating factor”/mixed-motive standard applied in accordance with an earlier decision by the Second Circuit, Parker v. Columbia Pictures Industries. The court, however, concluded that the Rehab Act incorporated the ADA’s causation standard and, therefore, that the “solely by reason of” standard did not apply.
Moving to the next step, the court also determined that the proper standard of causation for discrimination claims under the ADA was the “but-for” standard and not the mixed-motive standard. Citing to Gross and Nassar, the court explained that the ADA does not include a provision expressly providing for a motivating factor test, as is found in Title VII for certain claims. Also, there was no express instruction from Congress that the motivating factor test applied and it did not amend the ADA to include that test, even though it amended the ADA at the same time it added the test to Title VII. The court rejected the employee’s other arguments for why the mixed-motive standard applied. From there, the court determined that, under Gross, the “on the basis of” language in the ADA requires but-for causation.
Summary judgment still proper. Applying that standard to the employee’s claims, the court concluded that he failed to demonstrate disability discrimination was the but-for cause of the employer’s actions, relying in large part on the performance issues raised by the commissioner’s “clueless” assessment. Likewise, the employee’s argument that the actions taken by the deputy commissioner, including the negative performance review, were discriminatory failed because there was no evidence of discriminatory intent. The court also found that the district court properly granted summary judgment for the employer on the employee’s failure to accommodate and retaliation claims.
Judge Chin’s dissent. Although Judge Chin agreed that a but-for causation standard applied to the retaliation claim, he believed that the other two claims under the Rehab Act were still subject to the motivating-factor standard. He argued that the reasoning used in Gross did not apply to ADA claims, that the 2008 amendments demonstrated that Congress wanted to retain the motivating-factor standard, and the ADA’s legislative history made it clear that Congress intended that the ADA continue to have the same causation standard that applied to claims under Title VII.
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