April 27, 2020
SCOTUS Speaks…But Does Not Answer
On April 27th the U.S. Supreme Court (SCOTUS) declined to hear a case to determine a plaintiff’s burden of proof when bringing a claim of discrimination under the Americans with Disabilities Act (ADA). The 9th Circuit Court of Appeals ruled last year that the plaintiff had to show that but for the disability, discrimination would not have occurred instead of showing that disability was simply a motivating factor in the adverse action.
Why? Title I of the ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability…” The 9th Circuit looked at the high court’s prior decisions under other employment statutes. SCOTUS has held that the “but for” standard is required in cases brought under the Age Discrimination in Employment Act (ADEA) as well as Title VII retaliation cases. Specific to the application of the “but for” rule in ADA cases, the 9th Circuit joined the 2nd, 4th, 6th and 7th Circuits, which have all ruled that is the proper standard of proof to be applied.
What now? I suspect no employer wants to be the test case. Train your managers and supervisors on the basics of the ADA. Give them bells and whistles, things for which to listen and watch. When an employee says “I can’t…” or “I need” and what follows is a request for assistance to perform one or more essential functions of the job, call HR to engage the employee in an interactive dialogue to find out what the employee needs and what you can provide.