2d Circuit Holds That the ADA Requires “But For” Causation

In Natofsky v. City of New York, 2019 WL 1715951 (2d Cir. April 18, 2019), the Second Circuit, inter alia, held that the Americans with Disabilities Act (ADA) employs the (relatively strict) “but for” causation standard.

From the decision:

Having determined that the ADA does not incorporate Title VII’s mixed-motive standard, the remaining question is what precisely “on the basis of disability” means. 42 U.S.C. § 12112(a). In [Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)], the Court held that “because of” — the language used in the ADA prior to the 2008 amendments — meant “by reason of: on account of” and required a showing of but-for causation. Gross, 557 U.S. at 176, 129 S.Ct. 2343 (quoting 1 Webster’s Third New Int’l Dictionary 194 (1966)). The Court cited to a prior case, Safeco Insurance Co. of America v. Burr, which stated that “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship.” Gross, 557 U.S. at 176, 129 S.Ct. 2343 (quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63, 64 n.14, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) ). We find no reason to hold that there is any meaningful difference between “on the basis of,” “because of,” or “based on,” which would require courts to use a causation standard other than “but-for.” We conclude that “on the basis of” in the ADA requires a but-for causation standard.

Further, nothing in the legislative history of the ADA indicates that “on the basis of” was supposed to lower the causation standard for employment discrimination claims below the traditional but-for standard. The ADA originally prohibited discrimination “against a qualified individual with a disability because of the disability of such individual.” Pub. L. No. 101-336, § 102 (1990). The ADA Amendments Act of 2008 changed this language, prohibiting discrimination “against a qualified individual on the basis of disability.” Pub. L. No. 110-325, § 5 (2008). Legislative history suggests that Congress intended this change to return the “ADA’s focus” to “where it should be – the question of whether the discrimination occurred, not whether the person with a disability is eligible in the first place.” 154 Cong. Rec. S9626 (Sept. 26, 2008) (statement of Sen. Reid) (2008); see also 154 Cong. Rec. S8840-01 (Sept. 16, 2008) (Senate Statement of Managers) (“[L]ower court cases have too often turned solely on the question of whether the plaintiff is an individual with a disability rather than the merits of discrimination claims ….”). Thus … “[t]he legislative history suggests the language was changed to decrease the emphasis on whether a person is disabled, not to lower the causation standard.”

Applying the law, the court held that plaintiff “failed to demonstrate that discrimination based on his disability was the but-for cause of” the alleged adverse actions.

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