Sense Overcomes Sensibility: Ninth Circuit Comes Aboard But-For Test for ADA

Those who live by a multi-level analysis die by it: pull out an essential step and the entire logical edifice comes crashing down.  That is one lesson to be gleaned from the unanimous published decision by a panel of the Ninth Circuit.  There are others, but that will have to wait until the end of this piece.

Discrimination in employment is regulated by three laws, which have interrelated provisions: Title I of the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and Title VII of the Civil Rights Act of 1964, covering race, sex, color, religion, and national origin.  The issue presented in Murray v. Mayo Clinic (No. 17-16803, August 20, 2019) was whether the test for discrimination in a discharge under the ADA is “but for the disability” or the disability as a motivating factor in the decision to discharge.  The trial court gave a “but for” instruction to the jury and the panel affirmed.

The panel did not face a legal tabula rasa.  A previous opinion by the Ninth Circuit adopted the motivating factor test.  In doing so, it followed two lines of reasoning.  The first, and most important, was to interpret the causal language in the ADA itself.  The ADA prohibits employment discrimination on the basis of disability “because of,” “by reason of,” and “because.”  In the previous case, the Ninth Circuit held that this meant the ADA only required a showing that the disability was a motivating factor, not a but-for factor in the challenged action. (N.B.: The reasoning of the prior panel doesn’t make a lot of sense, at least as described in the case under discussion.  The early decision equated but-for with “solely,” which is simply not true.  If without the forbidden motive, the person would not have been acted against, the discrimination for disability is but-for, but not solely.)

The earlier decision also relied upon reasoning of two other Circuits in reaching its conclusion that discrimination need only be a motivating factor in the employment decision.  The approach of those Circuits was to trace causation language through a complicated warren of statutory provisions.   Please stick with me, because this gets a bit complicated.  Drop breadcrumbs along the path like Hansel and Gretel if it helps.

This is how the other Circuits analyzed the issue: In addition to prohibiting discrimination on the basis of disability, the ADA contains an enforcement provision, Section 1 (so titled for our purposes), that incorporates a provision (among others), Section 2, in Title VII (racial, etc. discrimination), which cross-references another provision of Title VII, Section 3.  That very last provision (in Title VII, Section 3) states that it is unlawful if race, color, religion, sex, or national origin “was a motivating factor for any employment practice, even though other factors also motivated the practice.”  Section 2, also in Title VII, ameliorates the penalties associated with a violation of Section 3 if the accused party demonstrates that the same action would have been taken in the absence of the impermissible motivating factor.  Continuing in reverse order, Section 1, finally reaching the ADA, states that the powers, remedies, and procedures set forth in six different sections of Title VII, including Section 2, shall be the powers, remedies, and procedures available to disability discrimination claims.

You may have some difficulty with the two rationales on which the Ninth Circuit based its prior motivating factor holding.  You are not alone.  The Supreme Court had problems with both, too.  After the Ninth Circuit ruled originally, the Supreme Court held that the same “because of” language that is in the ADA, when it appears in the ADEA (regarding age), meant that Congress intended that the discriminatory purpose be “but for,” not merely a motivating factor.  Then, in a separate opinion, rendered four years after the first, the Supreme Court interpreted Section 3 to be strictly limited to only the five enumerated prohibited actions (race, color, religion, sex, and national origin), and not to the other two in Title VII.  The one in question in that second Supreme Court case was retaliation.  Well, if Section 3 only applies to the enumerated discriminatory acts, even in Title VII cases, then it certainly can’t apply to an unenumerated discriminatory act in another statute, such as disability in the ADA.

What is the Ninth Circuit to do?  The Supreme Court, right or wrong, under the Constitution, is the final authority on all matters on which it rules—at least as far as the lower federal courts are concerned.   (For statutes, Congress can always change its mind through legislation.)  That applies to the legal principles the Supreme Court establishes and to the interpretations it makes of federal statutes.  Not just to the federal statutes it actually interprets, but to the reasonably required extensions of those interpretations to other statutes, as in this case.  When there is conflict in fact or law, the lower federal courts must give full sway to the Supreme Court and give way.

The Ninth Circuit, as all federal Circuits, has rules for changing its mind.  Those rules themselves are precedents for each Circuit.  First, no three-judge panel may overrule a prior decision of the court, unless it must by virtue of an intervening Supreme Court decision or decisions.  The Ninth Circuit, by its own precedent, establishes a high bar for a three-judge panel to overrule a prior Ninth Circuit decision because of a Supreme Court ruling: the decision by the higher court must “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.”  As the Ninth Circuit panel described the test in the case under discussion: “If the court can apply prior [Ninth C]ircuit precedent without running afoul of the intervening authority, it must do so.”  In this case, it couldn’t, and so overruled its prior decision.  It was, by the way, in good company: four other Circuits had previously felt compelled to reverse themselves because of the intervening Supreme Court cases.

What are we to make of all this?  At one level, it is important for employers that the rule in the Ninth Circuit is but-for causation for federal disability discrimination claims.  At another level, this case shows how the federal judicial system works, and not just the interrelationship of the lower courts to the Supreme Court, but within the lower courts themselves.  Each circuit is bound by its own precedent and that precedent includes how it binds itself.  As the panel in this case stated, under Ninth Circuit precedent, one panel is not free to change Ninth Circuit law for any reason other than being compelled to do so by intervening Supreme Court decisions, and only then if the decisions are at odds with the prior decision under the Ninth Circuit’s “clearly irreconcilable” test.

And that is generally the rule.  Have other Circuits taken another approach to a question of law?  Too bad.  That’s not enough for a three-judge panel to change Circuit law, not even when the Circuit score is everyone else to one.  Compelling modern sensibilities offended by the prior decision?  Nope, not enough.  Change can be effected for prudential reasons even if not compelled; it just cannot be done by a three-judge panel.   If the reasons are compelling enough, the issue important enough, the time is right, and if the Circuit is in the minority, perhaps you can muster rehearing en banc.  It wouldn’t hurt if the panel suggested the issue was perhaps appropriate for a re-examination.

All this can happen, but the stars must align.  It is incumbent if you face a brick wall (i.e., you can’t distinguish your case on the facts), to assess your chances of getting Circuit law changed in the cold light of dawn, and that means by understanding Circuit precedent on when a panel must change (intervening Supreme Court opinion) and when an en banc court may change a prior decision.  What are the tests?  When has that Circuit reversed itself and what did it consider important in reaching that conclusion?  Only when fully informed can you make a decision, and it is nuanced and complicated.

Finally, understanding this process puts you a step (mile?) ahead of the lawmakers (and reporters) who lambasted then-Judge Neil Gorsuch at his confirmation hearing for obeying the law by ruling in a case as he was compelled to do by Circuit precedent, even though he suggested in that very opinion that the rule he was applying was ripe for reconsideration by the en banc court.  That the Supreme Court later changed the rule was held up as somehow making his interpretation heartless.  As we all know, Judge Gorsuch had no choice: He, too, was constrained by precedent.  He couldn’t change the law even if he wanted to, and he showed that he did.  In acting within the constraints of law and precedent, he showed sense, even as his critics, post facto, wanted mere sensibility.

Arthur F. Fergenson is a Senior Counsel in our Maryland office.