When I previoulsy wrote about the age discrimination decision in Gross v. FBL Services, which held the mixed motives analysis doesn't apply to age discrimination claims, I deliberately avoided explaining what was meant by mixed motives analysis. I simply said that in a Title VII mixed motives claim, "the employee can partially win."
Today's Americans with Disabilities Act decision from the Seventh Circuit requires me to more fully explain what I meant.
Because of amendments to Title VII in 1991, if a jury finds that the employer's motives were not entirely pure but that it would have nevertheless made the same decision, the court may award the employee limited relief. The employee cannot get damages (including backpay) nor can the court order the employee be reinstated. The employee can get other injunctive relief (i.e. an order prohibiting future discrimination) and can recover attorney fees (which can add up to a lot).
The 1991 amendments, however, divided up this into two different statutes. One statute (42 U.S.C. 2000e-2(m) states (essentially) that if the employer had an illegal motive but would made the same decision nonetheless, the employer is nevertheless liable to the employee (the "liablity" provision). The other statute (2000e-5(g)(2)(B)) limits the relief the employee can obtain in such a situation (the "remedy" provision).
Just a year before the Title VII amendments, Congress enacted the ADA. Instead of establishing new procedures within the ADA itself, Congress simply invoked by reference the Title VII procedures (several statutes were invoked but the one we are currently concerned with is section 2000e-5). This is why employees must file charges of discrimination with the EEOC in ADA claims. The ADA does not, however, invoke 2000e-2, which is, to repeat, where Congress, a year later, inserted a provision making employers liable (but with limited relief) if race, sex, religion or national origin actually motivated the decision even if the decision would have been the same without that illegal motive.
In the Seventh Circuit ADA claim, the jury found that the employer (Rockwell) terminated the employee because of her perceived disability. The jury also found, however, that Rockwell would have terminated the employee even if it did not believe she had a disability. The district court granted the employee injunctive relief (requiring Rockwell to put a copy of the judgment in the employee's personnel file) and her attorney fees (which the court reduced from $153,290.54 to $30,658.11, because of the jury's finding).
The Seventh Circuit decision wiped out even this "limited" relief by holding that because Congress did not expressly invoke the mixed motives liability provision (2000e-2) in the ADA, its invocation of the mixed motives remedy provision (2000e-5) was not enough after the Supreme Court's decision in Gross.
I don't ordinarily discuss here questions of statutory interpretation. This decision is important because it further demonstrates the impact of the Supreme Court's decision in Gross. It makes trying or briefing an ADA claim simpler. Of course, it doesn't mean employers should be less cautious or more sloppy in making decisions, especially now that the ADA has been amended to vastly increase the number of folks who have "protected" disabilities. It is far better to convince a jury (or judge) that the decision was completely free from bias.
No comments:
Post a Comment