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Does Comcast v. National Association of African American-Owned Media require a "but for" test in ADA employment discrimination cases?

The Americans with Disabilities Act (ADA) makes it illegal for employers to discriminate against persons based on real or perceived disabilities who are qualified to do the essential functions of the job, if the employers are aware of the disability. See generally 42 U.S.C. § 12112(a).

"Mixed motive" issues come up in employment discrimination cases where the employer produces a nondiscriminatory reason for the adverse employment action. The finder of fact determines whether it is valid or pretextual. The Supreme Court has not spoken definitively on the proper standard for this inquiry in ADA employment discrimination cases.

In Title VII employment discrimination (race, color, religion, sex or national origin) cases, a "motivating factor" ("same decision") test applies. This means a reason, alone or with other reasons, on which the defendant relied (or which moved the defendant toward its decision) in taking an adverse action. See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

In ADEA (age discrimination) and Title VII retaliation cases, a stricter "determining factor" ("but for") test requires a showing that the the employee's protected trait actually played a role in the process and had a determinative influence on the decision. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009) (ADEA); University of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (Title VII retaliation).

The reasoning in today's decision in Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, No. 18-1171 (U.S. Mar. 23, 2020), which held that a plaintiff prosecuting a racial discrimination claim founded on 42 U.S.C. § 1981 must plead and then prove that the injury would not have occurred "but for" the defendant’s unlawful conduct, indicates that the "but for" test is likely the correct test in ADA discrimination cases.

Trialdex has a employment discrimination "litigation tool" that analyzes causes of action in ADA cases. It has been updated to note the Comcast decision.

(03/23/20) (permalink)

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