No. 09-6381 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ SUSAN LEWIS, Plaintiff, v. HUMBOLDT ACQUISITION CORP., d/b/a HUMBOLDT MANOR NURSING HOME, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Western District of Tennessee, No. 07-cv-1054 The Honorable J. Daniel Breen ____________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF/APPELLANT'S PETITION FOR REHEARING EN BANC ____________________________________________ P. DAVID LOPEZ General Counsel U.S. EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE JENNIFER S. GOLDSTEIN Washington, DC 20507 Attorney (202) 663-4733 Jennifer.goldstein@eeoc.gov TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Rule 35(b) Required Statement. . . . . . . . . . . . . . . . . . . . . 1 Statement of Interest . . . . . . . . . . . . . . . . . . . . . . . . 1 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES CASES Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999). . . . . . 8, 12 Berry v. Assoc. Hygienic Prods., 243 Fed. Appx. 129 (6th Cir. 2007) . . .1, 5 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . 12 Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996) . . . . . . . 12 Everson v. Leis, 2011 WL 463231 (6th Cir. Feb. 10, 2011) . . . . . . . . .10 Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134 (10th Cir. 2005) . . . 8 Foster v. Arthur Andersen, LLP, 168 F.3d 1029 (7th Cir. 1999) . . . . . . 8 Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343 (2009) . . . . . . . 1, 6, 13 Head v. Glacier Nw., Inc., 413 F.3d 1053 (9th Cir. 2005) . . . . . . . . . 8 Hedrick v. Western Reserve Care Sys., 355 F.3d 444 (6th Cir. 2004) . . . . 4 Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996) . . . . . . . . . . 8, 13 Layman v. Alloway Stamping & Mach. Co., 98 Fed Appx. 369 (6th Cir. 2004) . 7 Lee v. City of Columbus, ___ F.3d ___, 2011 WL 611904 (6th Cir. Feb. 23, 2011) . . . . . . . . . . . . . . . . . . . . . . . . 7 Lewis v. Humboldt Acquisition Corp., 634 F.3d 879 (6th Cir. 2011) . . . 6 Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357 (6th Cir. 2007) .4, 8 Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir. 1995) . . . . . . 3 McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) . . . . . . 11 McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11th Cir. 1996) . . . 8, 12 Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir.1996) . 3, 4 Morse v. Republican Party of Va., 517 U.S. 186 (1996) . . . . . . . . . 12 Newberry v. E. Tex. State Univ., 161 F.3d 276 (5th Cir. 1998) . . . . . . 8 New Directions Treatment Servs. v. City of Reading, 490 F.3d 293 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . 8 Newman v. GHS Osteopathic, Inc., 60 F.3d 153 (3d Cir. 1995) . . . . . . . 8 Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000) . . . 8, 13 Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300 (8th Cir. 1995) . . . . . 8, 13 Pinkerton v. Spellings, 529 F.3d 513 (5th Cir. 2008) . . . . . . . . . . . 9 Taylor v. Small, 350 F.3d 1286 (D.C. Cir. 2003) . . . . . . . . . . . . . .9 Todd v. City of Cincinnati, 436 F.3d 635 (6th Cir. 2006) . . . . . . 1, 4, 5 Whitfield v. Tenn., ___ F.3d ___, 2011 WL 1085657 (6th Cir. Mar. 25, 2011) . . . . . . . . . . . . . . . . . . . . . 4, 7 STATUTES, LAWS and LEGISLATIVE HISTORY Rehabilitation Act, section 501(b), 29 U.S.C. § 791(b) . . . . . . . . . .12 Rehabilitation Act, section 504(a), 29 U.S.C. § 794(a) . . . . . . . . . 12 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 42 U.S.C. § 2000e-5(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . 13 42 U.S.C. § 2000e-5(g)(2)(B) . . . . . . . . . . . . . . . . . . . . . 13 Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. . . . . . 1 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 13 42 U.S.C. § 12117(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 12201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. . . . . . . . . . . . . . . . . . . . .2 Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, 106 Stat. 4344 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 H.Rep. No. 101-485(II) (1990), reprinted in 1990 U.S.C.C.A.N. 303 . . . 11 H.R. Rep. No. 485(III) 48 (1990), reprinted in 1990 U.S.C.C.A.N. 445 . . . 14 110 Cong. Rec. 13,837-38 (1964) . . . . . . . . . . . . . . . . . . . . . 11 RULES F.R.A.P. 35(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 F.R.A.P. 35(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 RULE 35(b) REQUIRED STATEMENT The panel's ruling that an Americans with Disabilities Act (ADA) plaintiff must show his or her disability was the sole cause for an adverse employment action is inconsistent with the following Supreme Court and Sixth Circuit decisions: Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343 (2009) Todd v. City of Cincinnati, 436 F.3d 635 (6th Cir. 2006) Berry v. Assoc. Hygienic Prods., 243 Fed. Appx. 129 (6th Cir. 2007) The panel's ruling also presents a question of exceptional importance: Whether the ADA sets out a "sole cause" standard or whether, as virtually every other court of appeals has held, the ADA's plain language is at odds with a sole cause standard. STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration, and enforcement of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. In this case, the district court instructed the jury that the plaintiff had to show her disability was the "sole reason" for her termination. A panel of this Court affirmed, holding it was bound by Sixth Circuit precedent. Unless corrected by the full Court, the sole reason standard will deprive many individuals of the protection against disability discrimination intended by Congress, which rejected such a narrow causation standard. We therefore offer our views to the Court. ARGUMENT Section 504 of the Rehabilitation Act states: "No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be . . . subjected to discrimination." 29 U.S.C. § 794(a) (emphasis added). The ADA does not contain the word "solely;" it prohibits employers from "discriminat[ing] against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a)(emphasis added).<1> Despite the differences in the language of the statutes' causation provisions, the district court in this ADA case instructed the jury that Lewis must prove her disability was the "sole reason" for Humboldt Manor's decision. R.100 at 14 ¶3. This court affirmed, holding it was "powerless" to overrule precedent requiring a sole reason instruction. The "sole cause" or "sole reason" requirement is applied inconsistently within the Sixth Circuit. It is a requirement unsupported by the language of the ADA, and as such is in conflict with a recent Supreme Court decision. It is a requirement rejected by virtually every other court of appeals. Finally, because causation goes to the heart of proving a discrimination claim, it is an issue of exceptional importance. This Court therefore should rehear the case en banc. 1. Sixth Circuit decisions on sole cause are inconsistent with each other. This Court first applied the Rehabilitation Act's section 504 "sole cause" standard to cases brought under the ADA in Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir. 1995), a case brought under both statutes. Without addressing the linguistic differences between the statutes, Maddox stated simply that the "ADA parallels the protection of the Rehabilitation Act," and so any reasoning applied to the plaintiff's Rehabilitation Act claim would "appl[y] with equal force to the ADA claim." Id. at 846 n.2. Maddox held that the plaintiff had to show "he was discharged solely by reason of his disability," id. at 846 (quotations omitted), and this Court subsequently reaffirmed that standard in an ADA-only case, Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996). In Monette, this Court cited Maddox, and held<2> that an ADA plaintiff must show, inter alia, that "he was discharged solely by reason of his handicap." Id. at 1178.<3> Numerous Sixth Circuit opinions subsequently applied the Monette sole cause standard, albeit many with the explanation that the Court was doing so because it felt bound by Sixth Circuit precedent. See, e.g., Whitfield v. Tenn., ___ F.3d ___, 2011 WL 1085657 (6th Cir. Mar. 25, 2011) ("bound" by sole reason test applied in prior decisions); Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 363-64 & n.2 (6th Cir. 2007) (noting that "every other circuit save one that has addressed the issue has held that an employee may recover under the ADA if the employee's disability was a 'motivating factor' in the employer's decision, and that the employee need not establish that he or she was fired 'solely' because of his or her disability," but holding that it was "bound" by prior precedent); Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 454 (6th Cir. 2004) (noting that "some of our sister circuits" have rejected the sole cause standard, but stating that Monette "remain[s] good law . . . and we are bound by this authority"). In two cases, however, this Court has retreated from a rule requiring a plaintiff to show his or her disability was the only, "sole" reason for the employer's action. In Todd v. City of Cincinnati, 436 F.3d 635 (6th Cir. 2006), the plaintiff, a retired police officer, produced evidence that the City rejected him for a firearms instructor position because of his disability. The City argued that even though there was evidence disability played a role in the decision, it was undisputed his disability was not the "sole reason" for hiring another person into the job, and that summary judgment therefore was proper under the Monette standard. Id. at 637. The Todd Court rejected that argument and interpreted the Monette standard not to require a sole cause showing. According to the Court, an ADA plaintiff may prevail in a case with multiple reasons (including disability) for the challenged action unless the legitimate, non-disability based reasons are "good and sufficient reasons . . . to discharge the plaintiff." Id. One other Sixth Circuit decision has followed Todd. See Berry v. Assoc. Hygienic Prods., 243 Fed. Appx. 129, 133 (6th Cir. 2007) (where direct evidence shows disability was a factor in adverse employment decision, burden shifts to employer to show it was "justified by wholly legitimate concerns") (citing Todd). Monette and Todd cannot be reconciled without en banc review. The Monette standard means that a plaintiff must show that disability was the sole, only reason for the employer's action; if other reasons played a part, however minor, those reasons defeat a discrimination claim under the sole cause standard. Todd means something different; Todd would uphold a disability discrimination finding if disability was not the sole cause, but was the "but for" cause. In other words, if a legitimate decision played some role in a firing, but an employer would not have fired an employee were it not for a supervisor's anti-disability bias, the employee would have an ADA claim under Todd, but not under Monette. This Court therefore should grant rehearing en banc to "secure and maintain uniformity of the court's decisions." F.R.A.P. 35(b)(1)(A). 2. The panel decision and the Monette line of precedent are inconsistent with a recent Supreme Court decision. Rule 35(b)(1)(A) contains a second ground for granting en banc review: the panel decision conflicts with a decision of the United States Supreme Court. In Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009), the Court considered whether the causation standard of Title VII applied to the ADEA. Even though the statutes contained similar language, particularly prior to the adoption of the 1991 amendments, the Court held Title VII's standard did not apply to the ADEA, based upon the Court's reading of "the ADEA's text." Id. at 2349. In so holding, the Gross Court cautioned that courts engaging in statutory interpretation "must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination." Id. (quotations omitted). The Maddox/Monette line of precedent is in tension with the teaching of Gross, for the cases simply adopt the Rehabilitation Act section 504 causation standard, without any analysis of the textual differences between that statute and the ADA. As several Sixth Circuit judges have emphasized, these statutory differences are significant and indicate Congress did not mean to import the Rehabilitation Act's section 504 sole cause standard into the ADA. See Lewis v. Humboldt Acquisition Corp., 634 F.3d 879, 882 (6th Cir. 2011) (Griffin, J., concurring) ("the plain language of the ADA does not support application of the Rehabilitation Act's 'sole reason' standard"); Whitfield, ___ F.3d ___, 2011 WL 1085657, at *8 (Stranch, J., concurring) (noting that "no derivation of the word 'sole' appears in any liability provision of the ADA" and urging the "en banc court to avail itself of the next opportunity to reexamine our decisions imposing a 'sole reason' standard on the . . . ADA"); Layman v. Alloway Stamping & Mach. Co., 98 Fed Appx. 369, 375 (6th Cir. 2004) ("the plain language of the [ADA] strongly supports" the argument that sole cause is not the ADA standard); see also Macy, 484 F.3d at 363 n.2 (highlighting textual differences); Lee v. City of Columbus, ___ F.3d ___, 2011 WL 611904, *3 & n.4 (6th Cir. Feb. 23, 2011) (same). En banc review therefore is necessary to harmonize Sixth Circuit precedent with the Gross Court's directive to scrutinize a particular statute's text in order to determine the appropriate causation standard for that statute. 3. The panel decision and the Monette line of precedent are inconsistent with the decisions of all the other courts of appeals save one. The ADA's causation standard is a question of "exceptional importance" because "it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue." F.R.A.P. 35(b)(1)(B). The petition places particular emphasis on the contrary rulings of the other courts of appeals, Pet. at 5-10, and the EEOC does not wish to replicate the arguments of the petition except to point out that the EEOC agrees with the Macy Court's observation that "every other circuit save one that has addressed the issue" applies a "motivating factor" standard, not a sole cause standard. Macy, 484 F.3d at 363 n.2 (citing Head v. Glacier Nw., Inc., 413 F.3d 1053, 1063-65 (9th Cir. 2005); Parker v. Columbia Pictures Indus., 204 F.3d 326, 336-37 (2d Cir. 2000); Baird ex rel. Baird v. Rose, 192 F.3d 462, 468-70 (4th Cir. 1999); Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34 (7th Cir. 1999); Newberry v. E. Tex. State Univ., 161 F.3d 276, 279 (5th Cir. 1998); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1073-77 (11th Cir. 1996); Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301-02 (8th Cir. 1995)); see also New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 300 n.4 (3d Cir. 2007) (citing Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 158 (3d Cir. 1995)); but see Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 144 (10th Cir. 2005). Moreover, several courts have held that even certain Rehabilitation Act claims do not require proof that disability was the sole cause of an employer's action. While section 504, 29 U.S.C. § 794, prohibits discrimination "solely" because of disability in regard to benefits of or participation in programs receiving Federal financial assistance, section 501(b), 29 U.S.C. § 791(b), contains no such sole cause language.<4> In Pinkerton v. Spellings, 529 F.3d 513, 515-19 (5th Cir. 2008), for example, the Fifth Circuit analyzed the statutory provisions and held that section 501 causation's standard is not the sole cause standard of section 504. Instead, Congress intended section 501's causation standard to be the same as that of the ADA, and the "proper causation standard under the ADA is a 'motivating factor' test." Id. at 519. In holding that an ADA plaintiff must show his or her disability was the sole cause of an adverse employment action, this Court is largely an outlier on the causation question, and its status as such provides a strong reason to decide the issue en banc. 4. The panel decision and the Monette line of precedent raise an issue of exceptional importance because the decisions err on a critical issue to prove discrimination - causation. The facts of this case highlight how the causation standard applied is of critical importance to proving an ADA violation. As evidenced by its note to the district court, the jury plainly was troubled by the instruction that it had to find plaintiff's disability "was the sole reason" for defendant's decision to terminate her. See Trial Tr. Nov. 10, 2009, at 86 ("Do we have to find . . . that the reason for Ms. Lewis's termination was . . . solely because of her disability?"); id. ("What if we believe it may only have been a contributing factor?"). While it is not certain how the jury would have found if instructed under a different causation standard, its note suggests the outcome may well have been different. For example, the jury may have believed that Humboldt Manor officials were irritated by Lewis' alleged criticism of her supervisors and that it was in their minds when they decided to fire her, but that they never would have fired her based on the alleged criticism alone. The jury may have believed that the main reason for the decision to fire her was Lewis' perceived disability - in other words, that Humboldt Manor officials would not have fired her but for their perception that she was disabled. Under such a scenario, Lewis would prevail under either "a motivating factor" or a "but for" cause standard, but not under a "sole cause" standard. See generally Everson v. Leis, 2011 WL 463231, at *13 n.8 (6th Cir. Feb. 10, 2011) (unpublished) (Moore, J., dissenting) (discussing difference between "but for" and "sole factor" causation). It is not only in this case that a sole cause requirement may matter to a jury, for in many cases a party will be unable to exclude every possible influence on an employment decision other than disability. Congress noted the problems that a "sole cause" requirement may have on robust enforcement of an employment discrimination statute as early as 1964, when it rejected such a requirement for Title VII. As Senator Case, the Republican floor manager of Title VII, stated in explaining why such a requirement should be rejected, "[i]f anyone ever had an action that was motivated by a single cause, he is a different animal from any I know of." 110 Cong. Rec. 13,837-38 (1964). Adding the word "solely" to Title VII thus would, according to Senator Case, "render Title VII nugatory." Id. Congress continued to recognize the problems with the word "solely" when it enacted the ADA, highlighting the "absurd results" that could ensue by a "literal reliance on the phrase 'solely by reason of his or her handicap.'" H.Rep. No. 101- 485(II), at 85 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 368. The House Report, explaining why it omitted the word "solely" from Title II of the ADA (the public sector title), gave the example of an employer who rejects a qualified applicant "because he is black and because he has a disability." It could be argued, the Report states, "that he would not have a claim under section 504 because the failure to hire was not based solely on his disability. . . . The Committee rejects the result described above." Id. When it enacted the ADA, Congress understood that the phrase "because of" does not connote "solely because of." See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976) (Title VII plaintiff need not show "that he would have in any event been rejected or discharged solely on the basis of his race, without regard to [other] alleged deficiencies"). As the Eleventh Circuit explained in rejecting the sole cause requirement, Congress' understanding of Supreme Court decisions is important, for a "familiar canon of statutory construction is that 'evaluation of congressional action must take into account its contemporary legal context.'" McNely, 99 F.3d at 1076 (quoting Morse v. Republican Party of Va., 517 U.S. 186 (1996)). The Congress that enacted the ADA chose to use language different from that of section 504 of the Rehabilitation Act. This Court should give effect to Congress' choice.<5> On remand, the district court should instruct the jury that Lewis must prove her disability was a motivating factor in the decision to terminate her - the causation standard applied by a number of courts of appeals. See, e.g., Baird, 192 F.3d at 470 (applying Civil Rights Act because ADA provides that remedies of Title VII apply); Buchanan v. City of San Antonio, 85 F.3d 196, 200 (5th Cir. 1996) (same); Pedigo, 60 F.3d at 1301 (same); see also Katz, 87 F.3d at 33; Parker, 204 F.3d at 336-37. One judge of this Court has questioned whether, after the Supreme Court's decision in Gross, it is appropriate to apply the same causation standard as used in Title VII. See Everson, 2011 WL 463231, at *13 n.8 (Moore, J., dissenting). In Gross, 129 S.Ct. at 2349, the Supreme Court held that a "but for" causation standard applied to claims under the Age Discrimination in Employment Act (ADEA) because there was no language in the ADEA linking it to the causation standard of Title VII. In contrast to the ADEA, however, the ADA does contain language linking it to Title VII. See 42 U.S.C. § 12117(a) ("The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of [Title VII] shall be the powers, remedies, and procedures this subchapter provides [under the ADA]."). After amendment by the Civil Rights Act of 1991, the referenced portions of Title VII now include a provision authorizing an award of relief where a plaintiff proves that race, color, religion, sex, or national origin was "a motivating factor" for an employment practice, even though other factors also motivated the practice. 42 U.S.C. § 2000e-5(g)(1) & (g)(2)(B). The legislative history of the ADA leaves no doubt that Congress referred to Title VII in the ADA because it intended for the two statutes to be enforced in the same way. The House Judiciary Committee explained: "The Committee intends that the powers, remedies and procedures available to persons discriminated against based on disability shall be the same as, and parallel to, the powers, remedies and procedures available to persons discriminated against based on race, color, religion, sex or national origin. Thus, if the powers, remedies and procedures change in Title VII . . . , they will change identically under the ADA for persons with disabilities." H.R. Rep. No. 485(III), at 48 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 471. The ADA's House Report specifically mentioned the Civil Rights Act of 1991, noting: A bill is currently pending . . . which would amend the powers, remedies and procedures of Title VII. . . . Because of the cross-reference to Title VII in [the ADA], any amendments to Title VII that may be made . . . would be fully applicable to the ADA. Id. Indeed, Congress rejected an effort to "freeze" the remedies available under the ADA to the date of that statute's enactment, instead preferring that as Title VII goes, so too the ADA: An amendment was offered . . . that would have removed the cross-reference to Title VII and would have substituted the actual words of the cross- referenced sections. This amendment was an attempt to freeze the current Title VII remedies . . . in the ADA. This amendment was rejected as antithetical to the purpose of the ADA - to provide civil rights protections for persons with disabilities that are parallel to those available to minorities and women. By retaining the cross-reference to Title VII, the Committee's intent is that the remedies of Title VII, currently and as amended in the future, will be applicable to persons with disabilities. Id. It is therefore appropriate to require Lewis to prove her disability was a motivating factor in Humboldt manor's decision to fire her. CONCLUSION We urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel s/ Jennifer S. Goldstein JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION April 20, 2011 CERTIFICATE OF COMPLIANCE I hereby certify that the attached brief is proportionally spaced, has a typeface of 14 points, and is 15 pages long. s/ Jennifer S. Goldstein CERTIFICATE OF SERVICE All participants in the case are registered CM/ECF users and consented to service by e-mail. I hereby certify that on April 20, 2011, I e-mailed a copy of this brief to all registered CM/ECF users. s/ Jennifer S. Goldstein ********************************************************************************** <> <1> The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) amended the ADA to eliminate the additional reference to disability in the anti- discrimination section. Pub. L. No. 110-325, 122 Stat. 3553. That provision now reads: No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a) (emphasis added). Because this action arose prior to the January 1, 2009, effective date of the ADAAA, the amended language is inapplicable. Regardless, neither version of the ADA contains sole cause language. <2> Monette's adoption of the sole cause standard arguably was dicta, because the Court stated that all of the employer's explanations showed that it "relied on Monette's disabled status to replace him," but that Monette's ADA claim nonetheless failed because he could not show he was qualified. 90 F.3d at 1187, 1188. Subsequent Sixth Circuit cases have adopted the sole cause standard as the holding of the case. <3> The ADA never contained the word "handicap." The original version of the Rehabilitation Act did use the word "handicap," but Congress later replaced "handicap" with "disability." See Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, 106 Stat. 4344. <4> Section 501(b) states: Each department, agency, and instrumentality . . . in the executive branch and the Smithsonian Institution shall . . . submit . . . an affirmative action program plan for the hiring, placement, and advancement of individuals with disabilities in such department, agency, instrumentality, or Institution. 29 U.S.C. § 791(b). Several courts have held that this provision is the only authority for a federal employee to bring a private cause of action alleging disability-based employment discrimination. See, e.g., Taylor v. Small, 350 F.3d 1286, 1291 (D.C. Cir. 2003). <5> Congress acknowledged the relationship between the Rehabilitation Act and the ADA in the latter statute. See 42 U.S.C. § 12117(b) (enforcing agencies should avoid imposing "inconsistent or conflicting standards for the same requirements under this subchapter and the Rehabilitation Act") (emphasis added); 42 U.S.C. § 12201(a) ("Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act . . . or the regulations issued by Federal agencies pursuant to such title."). As discussed above, the causation standard of section 501 of the Rehabilitation Act, which some courts have held to be the provision authorizing employment discrimination claims, contains no sole cause requirement. See Pinkerton, 529 F.3d at 515-19. Thus to impose a more restrictive standard for ADA claims would run afoul of 42 U.S.C. § 12201(a). See Bragdon v. Abbott, 524 U.S. 624, 631-32 (1998). Even if the Rehabilitation Act is understood to impose a more restrictive causation standard, that standard is a result of more restrictive language than used in the ADA, and so should not be applied to the ADA. See 42 U.S.C. § 12117(b).