The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Friday, June 1, 2012
by Patrick Dorrian
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:
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