Thursday, April 22, 2010

Rehabilitation Act—Does Section 504’s Sole Causation Standard Apply to Section 501 Claims?

Recently, the Fourth Circuit in Dank v. Shinseki, 2010 U.S. App. LEXIS 7824 (4th Cir. Apr. 15, 2010), recognizing that there is a split in the circuits on this issue and no definitive decision from that circuit, found that it was not necessary for its decision in Dank to reach the issue. Section 504 of the Rehab Act states specifically that the employer’s action must be “solely by reason of” the illicit disability animus; whereas Section 501 of the same Act is silent in that regard. The government argued in Dank that this issue had already been resolved in its favor by the Fourth Circuit, relying upon Spencer v. Early, 278 F. App’x 254 (4th Cir. 2008) and Edmonson v. Potter, 118 F. App’x 726 (4th Cir. 2004). The Dank panel held that neither of those cases specified the standard for Section 501 nor addressed the issue of whether it is a different standard from that applicable to Section 504.

Judge Duncan, writing for the unanimous panel in Dank, noted that the Fifth Circuit is the only circuit that has squarely addressed this issue, holding in Pinkerton v. Spellings, 529 F.3d 513, 515-19 (5th Cir. 2008), that Section 501 requires only that disability be a motivating factor behind the employment action. Further, Judge Duncan notes the decisions of the D.C. Circuit (Adams v. Rice, 531 F.3d 936, 944 (D.C. Cir. 2008)) and the Eleventh Circuit (Nadler v. Harvey, 2007 WL 2404705, at *4 (11th Cir. Aug. 24, 2007)), where those courts applied the “solely by reason of” standard to claims raised under Section 501 and to Rehabilitation Act claims in general.

So, the issue remains largely unsettled, and now clearly is an unresolved question in the Fourth Circuit.


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