Employers frequently worry that if they discharge a disabled employee, they will be sued for disability discrimination even if they had a good reason for terminating the employee. That’s because disabled employees may claim their disability was a motivating factor in the decision.
Until recently, that was enough to win at least a partial victory in court. Fortunately, that’s no longer the case.
Recent case: A jury concluded that Kathleen Serwatka had been terminated in part because she was perceived as disabled, but also said that her employer would have terminated her even if it had not considered disability.
After the verdict, the trial judge ordered the employer to pay part of Serwatka’s attorneys’ fees. The employer appealed, arguing that the ADA doesn’t allow such “mixed motive” decisions.
The 7th Circuit Court of Appeals agreed, concluding that disabled employees have to prove that, if not for disability discrimination, they would not have been terminated. In short, Serwatka had to show that disability discrimination was more than a motivating factor, but was the determining factor. (Serwatka v. Rockwell Automation, No. 08-4010, 7th Cir., 2010)
Final notes: The 7th Circuit Court of Appeals did note that the language in the ADA has changed. This decision is based on the prohibition against discriminating “because of disability.” The updated law prohibits discrimination “on the basis of disability.”
The court offered no opinion on whether the change is important. Employers will have to wait and see. Remember that employment law is an evolving thing—just when you think you understand your obligations, the rules change.
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