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Abercrombie rule doesn’t cover ADA bias

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in Discrimination and Harassment,Human Resources

Last year, the U.S. Supreme Court’s EEOC v. Abercrombie & Fitch ruling made it clear that to prevail in a Title VII discrimination case, the employee only has to show that a protected characteristic such as sex or religion was a motivating factor in an employer’s discriminatory decision.

In that case, an applicant who wore a headscarf to her interview was rejected because the hiring manager concluded she could not meet the company dress code. Thus, the company had given at least some consideration to her religion when making the hiring decision.

Since then, plaintiffs’ lawyers have tried to argue the same rule applies to disability discrimination cases under the ADA. As this recent case shows, the argument isn’t working in the 9th Circuit, which covers California employers.

Recent case: Alice worked full-time as a bookkeeper for a small church. She took sick leave for 10 months, during which the pastor of the church took over the bookkeeping duties himself. He determined that the job could be done just as well by a part-time bookkeeper.

When Alice returned from sick leave, there no longer was a full-time bookkeeping position, so the pastor offered her a part-time job, which Alice declined.

Alice sued, arguing that she was disabled and that her disability was the reason the pastor had changed the job from full-time to part-time.

In court, she argued that she only needed to prove that disability played a part in the decision.

The 9th Circuit Court of Appeals rejected that argument. It stated that for ADA cases, the disabled employee or applicant must show that her disability was the more-likely-than-not motivating factor in the employer’s decision, rather than merely a factor. (Mendoza v. Roman Catholic Archbishop of Los Angeles, No. 14-55651, 9th Cir., 2016)

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