Mixed-motive claims under ADEA not valid

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Suppose an employer is found by a jury to have considered an impermissible factor, such as race, in making an employment decision.

But it also finds the employer would have taken the same action, even if it didn't consider the improper factor.

Where these "mixed-motive" cases involve race or sex or national origin, the plaintiff can still get some limited recovery under Title VII of the Civil Rights Act of 1964 — attorney fees.

But on June 18, the U.S. Supreme Court held that under the Age Discrimination in Employment Act of 1967 (ADEA), a plaintiff can't recover anything unless he proves that the employer would not have taken the adverse employment "but for" age discrimination. It is not enough merely to prove that age was "a motivating factor." Gross v. FBL Financial Services, Inc., No. 08-441.

In so holding, the court found the ADEA distinguishable from Title VII, because the latter explicitly provides for recovery in mixed motive cases.

The question that employment law attorneys are now scrambling to answer is whether that holding will be extended to the Americans with Disabilities Act (ADA).

Not surprisingly, two local attorneys on opposite sides of a mixed-motive ADA case currently pending in the Seventh Circuit have different takes on that issue.

Attorney Robert M. Mihelich, who represents the plaintiff in Serwatka v. Rockwell Automation, Inc., No. 08-4010 (argued May 14, 2009), believes the Gross case is inapplicable to ADA cases.

Attorney Robert H. Duffy, who represents the employer, thinks Gross will be extended to ADA claims.

The difference between the ADEA and Title VII underlying the Supreme Court's decision is a 1991 amendment.

Both statutes begin with language that it is unlawful for an employer to discriminate "because of" a protected characteristic — age under the ADEA; race, sex or national origin under Title VII.

However, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that an employer can defeat a Title VII claim if it shows that it would have taken the same action regardless of the impermissible consideration.

Congress responded by amending Title VII to provide that an employee need only show that the improper consideration was "a motivating factor" for the action. It made no such change to the ADEA.

The Supreme Court thus held in Gross that mixed-motive claims are untenable under the ADEA.

So, does Gross extend to the ADA?

Duffy believes that it does, and said he is considering filing a supplemental brief with the Seventh Circuit to point out the similarities between the ADA and ADEA. Just as Congress did not amend the ADEA in 1991, neither did it amend the ADA, Duffy noted.

Duffy added that extending Gross to the ADA would be sound policy. It is per se impermissible for an employer to consider a job applicant's race, Duffy noted. Therefore, it is not unreasonable to permit partial recovery when an employer does so, even if it is not the controlling factor in the employment decision.

Under the ADA, however, an employer is not merely allowed to consider the disability of an employee or job applicant, but may be required to, inasmuch as the disability may require reasonable accommodation. Thus, mere consideration of the disability should not warrant any recovery.

For further support, Duffy cited footnote 2 of the opinion in Gross.

The court noted that, while Title VII bars discrimination against people of all races and both sexes, the ADEA does not bar discrimination against people of all ages, only those over 40.

Footnote 2, Duffy contends, provides strong support for treating Title VII differently than other civil rights laws.

Mihelich, in contrast, contends that a particular statutory provision in the ADA, 42 U.S. 12117(a), provides a reason for distinguishing it from the ADEA.

That statute, which has no counterpart in the ADEA, provides that the powers, remedies, and procedures applicable to Title VII shall also be available under the ADA. Because attorney fees can be awarded in a mixed-motive case under Title VII, Mihelich contends, they can also be awarded under the ADA.

Duffy acknowledges the provision, but said it is limited to what remedies are available under the ADA, but says nothing about whether a mixed-motive claim is valid in the first place.