On Tuesday, August 20, the Ninth Circuit Court of Appeals in a case entitled Murray v. Mayo Clinic, joined four other Circuit Courts of Appeal in holding that a “but for” causation standard applies in ADA discrimination claims. This standard is considered to make it more difficult for employees to prove discrimination claims than what had been applied previously and is referred to as “a motivating factor standard.” The court reasoned that this change was required to comport with two earlier United States Supreme Court rulings that had adopted a similar standard based on similar statutory language found in the federal law prohibiting age discrimination in employment.
Using this new standard, ADA discrimination plaintiffs bringing a claim under 42 U.S.C. § 12112, which bars discrimination “on the basis of disability,” must now show that the adverse employment action would not have occurred but for the disability discrimination. Under the former standard, a jury could have found an employer had violated the ADA even if the employer proved that it had a “mixed motive” for the adverse action, i.e., both legitimate and illegitimate reasons.
While employers can rejoice about this important change, any celebration should await review of their applicable state disability discrimination practice. Many states have adopted standards that are different from what is afforded by this recent interpretation of federal law. Indeed, employees in those states may eschew federal claims in favor of a more liberal state law cause of action. Because employees can, and most often do bring claims under both federal and state law, juries will now face the unenviable task of applying two different legal standards that could yield different results: no liability under federal law, but liability under state law.
We asked the lawyers in some of Stoel Rives’ offices to explain how this change might impact state law regarding disability discrimination is in their respective states:
Amy Joseph Pedersen in our Portland office notes that Oregon’s disability statute is construed consistently with the ADA and Oregon law uses language identical to Title I of the ADA—barring discrimination “on the basis of disability.” Historically, Oregon courts have used a “substantial factor” test for these types of claims. Amy does not believe that Oregon courts will adopt the “but for” standard for state disability claims, and because a “substantial factor” test is easier for plaintiffs to meet, plaintiffs will be more likely to prevail on state law disability claims than those made under federal law.
Chris Wall in our Seattle office says that the Murray decision is unlikely to have much day-to-day impact for Washington employers, because few claims in Washington are brought under the ADA—most plaintiffs rely on state law. Washington courts have expressly rejected a “but for” standard for claims brought under the Washington Law Against Discrimination (“WLAD”). Washington courts require plaintiffs to prove only that their protected characteristic was “a substantial factor” in the allegedly discriminatory employment action. While Washington courts consider federal decisions as “persuasive,” Washington courts have noted that some WLAD provisions are “radically different” from federal law. Washington courts interpret the WLAD with “liberal construction” and find that “the WLAD provides greater employee protections than its federal counterparts.” Accordingly, Washington employers should take little solace in the Murray decision.