Recently, the issue of "but-for" evidence in discrimination cases has returned to the forefront. The Supreme Court’s 2009 decision Gross v. FBL Financial Services Inc., 129 S. Ct. 2343 (2009), which held that “but-for” evidence is needed to prove age discrimination under the Age Discrimination in Employment Act, seems to have brought a renewed focus on the issue of causation in cases litigated under the various federal employment discrimination statutes. The D.C. and Sixth circuits recently added to the list of post-Gross causation standard cases.

In Ponce v. Billington, the D.C. Circuit refused to overturn a jury verdict rejecting a Library of Congress employee’s race, sex, and national origin bias claims under Title VII of the 1964 Civil Rights Act. However, in doing so, it took the opportunity to clarify that a Title VII plaintiff proceeding under the “single-motive” theory of liability is not required to prove that the alleged discrimination was the “sole cause” of the challenged employment action.  Rather, “but-for” causation is the proper standard in such cases, the D.C. Circuit ruled.

The Sixth Circuit’s decision in Lewis v. Humboldt Acquisition Corp. came under a different federal anti-bias statute—the Americans with Disabilities Act.  There, an en banc court abandoned longstanding circuit precedent requiring evidence that a worker’s disability was the sole cause of an adverse employment action in order to establish employer liability under the ADA. Instead, by a 9-7 margin, the court looked to Gross and adopted the use of the “but-for” cause test for assessing ADA claims. It noted that the Seventh Circuit had previously reached a similar conclusion.

Other EEO developments of note over the past two weeks include:

• The Eleventh Circuit finds that an unmarried teacher at a Christian school in Florida, who was discharged four days after giving notice that she was pregnant, raised a triable issue on whether she was fired because of her pregnancy or because, as the school argued, she "sinned" by having premarital sex.

• Employer and other groups continue to quarrel with OFCCP regarding its proposed revisions to Section 503 of the Rehabilitation Act, sending a letter to Labor Secretary Solis in which they urge the agency to adopt more of a “consensus-building” approach.

• A federal court in Kentucky rejects as a “fishing expedition” a subpoena EEOC issued to Nestle Prepared Foods in a GINA case, which sought facility-wide information regarding the company’s acquisition of genetic information from any and all employees based on one GINA charge, filed by a single employee, solely alleging violations of that employee’s GINA rights.