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A Higher Burden for Plaintiffs Claiming Disability Discrimination in the Second Circuit

Published by on July 29, 2019

The Second Circuit recently held that plaintiffs bringing disability discrimination claims must meet the higher but-for causation standard, rather than a mixed-motives standard.

The plaintiff in Natofsky v. City of New York brought various disability-related claims under the Rehabilitation Act (which applies to employees of programs receiving federal financial assistance), as well as state and city law. Plaintiff claimed that during his employment, he experienced several adverse employment actions because of his hearing disability, and that his employer failed to accommodate him and retaliated against him.

The district court dismissed Plaintiff’s employment discrimination claims because he failed to demonstrate that his disability was the sole reason for any adverse actions he experienced. The Second Circuit on appeal noted that the Rehabilitation Act (Rehab Act) provides that no individual shall be subject to discrimination “solely by reason of her or his disability” versus the Americans with Disabilities Act (ADA), which prohibits discrimination “on the basis of disability.” Despite the statutes appearing as though they have different causation standards, the Rehab Act has a provision which explicitly provides that ADA standards shall also apply to Rehab Act claims.

The Second Circuit held that this provision required that the ADA causation standard be applied to claims under Rehab Act. Thus, in order to reach its ultimate conclusion, the Second Circuit first clarified the causation standard under the ADA. Previously, the Second Circuit had utilized a “mixed-motive” test under the ADA, meaning that a disability need only be one motivating factor in the adverse employment action.

The Court, however, concluded that the more recent U.S. Supreme Court decisions in Gross v. FBL Financial Services, Inc. (Age Discrimination in Employment Act claim) and University of Texas Southwestern Medical Center v. Nassar (Title VII retaliation claim) overruled this precedent. Specifically, the Second Circuit focused on how the ADA does not include provisions similar to those governing Title VII discrimination claims, which allow a plaintiff to establish discrimination by showing that discrimination was a motivating factor. This reasoning also supported the Supreme Court’s decisions in Gross and Nassar.

Thus, the but-for causation standard applies to ADA (and Rehab Act) claims, meaning that a plaintiff must establish that the adverse decision would not have been made but for his disability. The plaintiff in Natofsky failed to meet this but-for standard, the Second Circuit held. One judge dissented from the holding that the but-for causation standard applied and concluded that the motivating factor test should continue to be the governing test for ADA/Rehab Act claims.

Welter Insight

The Second Circuit joins several other circuits in holding the but-for standard applies to ADA claims, and the case may signal a shift in the standard following recent Supreme Court decisions. Regardless of the burden of proof in a lawsuit, the “best practices” for employers in working with and accommodating disabled employees have not changed.

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