Sixth Circuit Panel Continues to Reject Motivating Factor Test for Causation in ADA Cases

In Lewis v. Humboldt Acquisition Corp., Inc., 2011 U.S. App. LEXIS 5313 (6th Cir. Mar. 17, 2011), a panel of the 6th Circuit again held, given that the panel was powerless to overrule Circuit precedent, that the “motivating factor” (or a “substantial cause”) test did not apply in ADA cases.  Rather, the panel adhered to Circuit precedent (Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1993)) that adopted the “solely” causation standard for ADA claims from the Rehabilitation Act of 1973, which expressly requires sole causation.  See 29 U.S.C. § 794(a).  Other than the 6th Circuit, only the 10th Circuit adheres to the “solely” standard in ADA cases. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005); Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir. 1996).  All other Circuits that have addressed the issue have adopted the “motivating factor” test.  See, e.g.,  Pinkerton v. Spellings, 529 F.3d 513, 518-19 & n.30 (5th Cir. 2008) (collecting cases).  While Judge Merritt writing for the unanimous panel, did not expressly signal a belief that the “solely” standard was erroneous and that the en banc 6th Circuit ought to reverse that standard, Judge Griffin, concurring, made plain his opinion that the “solely” test, was erroneous and should be set aside.  We will keep our eyes out for a decision from the 6th Circuit on the inevitable en banc petition.

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