Seventh Circuit holds ADA Does not Adopt Mixed Motives Damages Provision from Title VII

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. 

DOL Prepares COBRA Premium Assistance Extension Notices

My prior post covered the December 2009 extension of premium assistance for employees involuntarily terminated and extending the assistance to those employees who lost their job between December 2009 and February 2010.  One of the requirements was that Plan Administrators send notices to affected employees.  The DOL has now prepared notices and these can be found at http://www.dol.gov/ebsa/COBRAmodelnotice.html

Because Congress waited until December to extend the notice, there will be COBRA participants who lost their job more than nine months before Congress extended the assistance period to 15 months.  As the DOL explained, “In addition, individuals who had reached the end of the reduced premium period before the legislation extended it to 15 months will have an extension of their grace period to pay the reduced premium. To continue their coverage they must pay the 35 percent of premium costs by February 17, 2010, or, if later, 30 days after notice of the extension is provided by their plan administrator.”

The DOL explains that these "transition period" individuals:

• must be provided this notice within 60 days of the first day of the transition period. An individual's "transition period" is the period that begins immediately after the end of the maximum number of months (generally nine) of premium reduction available under ARRA prior to its amendment. An individual is in a transition period only if the premium reduction provisions would continue to apply due to the extension from nine to 15 months and they otherwise remain eligible for the premium reduction.

Suppose, for example, a former employee's nine month assistance expired 12/1/2009.  The notice must be sent to the former employee before the end of January 2010.  The employee would have until February 17, 2010 in which to pay the December premium.  (If the full premium was paid, the employee is entitled to a refund.)

Calculating when the COBRA premium payment is due requires some thought.  I read the extension provision as saying that any premium (for a transition period former employee) that would be due January 1, 2010, need not be made until February 17, 2010 (instead of being due January 30, 2010, as it would under the 30 day grace period).  A premium payment due February 1, 2010, must be received no later than March 2 (i.e., 30 days later).  Fortunately, the DOL interprets the December extension as extending the grace period rather than the due date.