Second Circuit Adopts Heightened “But-For” Standard But Rejects “Sole-Factor” Test for Disability Discrimination Claims

In a recent 2-1 decision, the Second Circuit Court of Appeals rejected its prior precedent,1 joining the Fourth,2 Sixth,3 and Seventh4 Circuits in adopting a “but-for” causation standard in disability discrimination cases brought under the federal Rehabilitation Act of 1973.5  In doing so, the Second Circuit explicitly noted that, with respect to employment discrimination claims, the Rehabilitation Act incorporates the same causation standard as appropriate under Title I of the Americans with Disabilities Act of 1990, and amendments thereto (ADA).6

Typically, the burden of establishing that discrimination was the sole cause for an adverse action is more difficult than showing that but-for the protected characteristic, the adverse action would not have taken place.  Under the “sole-factor” standard, the claimant must prove that nothing else motivated an employer’s decision.  However, under a “but-for” analysis in a disability discrimination case, claimants must show that, even if other factors were considered, the adverse action would not have occurred if the employee did not have a disability.  In other words, the adverse action occurred because of the employee’s disability, even if the disability was not the sole cause.

Employing the “but-for” standard, the Second Circuit in Natofsky v. City of New York7 upheld summary judgment in favor of the employer.  The court rejected, however, the lower court’s sole-factor analysis under which it concluded that no reasonable jury could find the employee suffered an adverse action solely because of his disability.

The employee, relying on prior Second Circuit precedent, argued that he should have to show only that his disability was a motivating factor or that there were mixed motives—one of which was his disability—for the adverse action.  The majority was not persuaded by the employee’s contention that this lower causation standard should apply. 

Instead, the Second Circuit concluded that, unlike certain Title VII claims, the ADA does not expressly incorporate a motivating factor standard and there was nothing to suggest that Congress intended to incorporate such a standard into the ADA.  The majority followed the U.S. Supreme Court’s similar reasoning in adopting a “but-for” standard for age discrimination and Title VII retaliation claims8 by reading the ADA’s prohibition of discrimination “on the basis of disability” language as implicitly incorporating a “but-for” causation standard.  The Second Circuit majority concluded that “on the basis of” is synonymous with the phrase “because of”—which, in turn, means that but-for the employee’s disability the adverse action would not have occurred. 

The Second Circuit’s opinion carries implications both due to the merger of the ADA causation standard into Rehabilitation Act employment discrimination claims and due to the court’s agreement with three other circuits that the “but-for” standard applies to ADA claims.  In the wake of the Supreme Court’s decisions incorporating a “but-for” causation standard in age discrimination and Title VII retaliation claims, the Second Circuit’s opinion may be emblematic of a burgeoning trend amongst circuit courts to incorporate this heightened standard into other types of employment law claims.

Employers should be mindful of these evolving causation standards when defending against disability discrimination claims.  While, depending on the jurisdiction, employees may not need to show that their disability was the only reason an adverse action was taken, employers should be prepared to counter arguments that but-for the employee’s disability the employer would not have undertaken the action at issue or made the same decision.  These standards will serve as guideposts for employers both in defending against disability discrimination claims (including development of jury instructions) and minimizing risk when making future employment decisions.

See Footnotes

1 See Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000).

2 See Gentry v. E.W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016).

3 See Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 315 (6th Cir. 2012).

4 See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 963-64 (7th Cir. 2010).

5 The plaintiff also brought a retaliation claim, however, the Second Circuit focused its discussion on the disability discrimination claims instead.

6 The court’s incorporation of the ADA causation standard into Rehabilitation Act claims in this manner created a circuit split with the Fifth Circuit.  See Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500 (5th Cir. 2002).

7 Natofsky v. City of New York, No. 17-027457 (2d Cir. Apr. 18, 2019).

8 See Gross v. FBL Fin. Servs. Inc., 557 U.S. 167 (2009) (holding that the Age Discrimination in Employment Act’s “because of” age language incorporated a “but-for” causation standard); see also University of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (adopting the analysis of Gross and finding that the “because of” language in Title VII’s anti-retaliation provision demonstrated Congress’s intent to adopt a “but-for” causation standard for such claims).

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.