Earlier this month, in Staub v. Proctor Hospital, the Supreme Court upheld the cat’s paw doctrine in discrimination cases. While Staub was a USERRA case, at the time I pointed out the likely broad-reaching implications of the holding:
While the Court limited its holding to USERRA, it pointed out that USERRA’s “motivating factor” causation standard is “very similar to Title VII.” It will be difficult for lower court’s to avoid this broad application of the cat’s paw in Title VII (and likely ADA) cases. The only hold-out will be ADEA cases, which, in light of Gross v. FBL Financial Services, Inc., requires “but for” causation.
It took less than three weeks for the 6th Circuit to gut this holding in ADA cases. In Lewis v. Humboldt Acquisition Corp. (6th Cir. 3/17/11), Ohio’s federal appellate court upheld this circuit’s use of a “but for” causation standard in ADA cases. Because this circuit judges ADA cases under a “but for” standard, Staub’s application of the cat’s paw to discrimination statutes using a “motivating factor” standard has no application.
Employers should not get too excited about this victory. The 6th Circuit cautioned that its reading of the ADA’s causation standard is very much in the minority, and invited an appeal to the entire circuit to revisit (and likely overrule) the issue:
The ADA prohibits discrimination “on the basis of” disability.... Of the ten circuits that have considered the contours of this causation standard, eight currently apply a “motivating factor” (or a “substantial cause”) test; that is, a plaintiff must prove that his disability was only a motivating factor of the adverse employment action in order to prevail.... The current law in the Sixth Circuit, however, is that a plaintiff must prove that his disability was the “sole reason” for the adverse employment action....
“A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” ...
Unless that holding is overruled by the full Sixth Circuit sitting en banc or is undermined by an inconsistent decision from the U.S. Supreme Court, it remains good law in this circuit.
For more on the implications of the Lewis decision on the continuing viability of the cat's paw in 6th Circuit ADA cases, I recommend my fellow bloggers at the Employer Law Report.