Massachusetts Employment Law Letter

No “mixed” feelings

Disability claims are a hot item in employment discrimination law.  Last year, the Equal Employment Opportunity Commission confirmed that administrative charges alleging unlawful disability discrimination were on the rise for the fifth year in a row.  Employers can avoid liability for disability discrimination by making sure that adverse employment decisions (such as a demotion or termination) are not based in any way on an employee’s disability or complaints about violations of disability law.  Sometimes, though, an employer’s reasoning is “mixed,” i.e., the decision is partially based on disability bias and partially based on legitimate reasoning.  A recent case from the First U.S. Circuit Court of Appeals, which governs federal law in Massachusetts, demonstrates how Federal courts in Massachusetts handle these “mixed motive” cases.

Disabled veteran

Mark Palmquist was a veteran of the United States Marine Corps.  A helicopter crash during his service left him with a residual brain injury.  Under Federal law, Palmquist was entitled to a hiring preference for federal employment jobs because he is a disabled veteran, and so he was hired in 2004 by the Department of Veterans Affairs (“VA”) as a medical support assistant.  He applied for a promotion four months after starting but did not get an interview.  Palmquist felt that the VA had not honored his disabled veteran’s preference.  He claimed this was disability discrimination and complained to the VA’s equal employment opportunity (“EEO”) specialist and his congressman.

New position?  Denied

In February 2006, Palmquist sought another position as a rating veterans service representative (“RVSR”).  The position required him to impartially evaluate veterans’ applications for benefits.  A pair of VA employees interviewed Palmquist and then spoke to his supervisor, Sherry Aichner.  Although Aichner gave Palmquist a favorable recommendation, she mentioned some of his performance-related shortcomings, including socializing too much and occasionally leaving work to run errands.  She also mentioned that he had a tendency to overzealously support veterans’ rights.  Aichner then raised the 2004 incident when Palmquist applied for and was denied an interview for a promotion and then complained to the VA’s EEO office and congressman.  Palmquist did not get the position, and Aichner’s reference was “one factor” in the decision not to hire him.

Employee fights back

Palmquist sued his employer under the Rehabilitation Act, a federal law that prohibits discrimination on the basis of disability in federal employment.  The standards for employment discrimination under the Rehabilitation Act are the same as those under the Americans with Disabilities Act (“ADA”).  Palmquist claimed that the reason he was not hired for the RVSR position was because he had complained about disability discrimination in 2004.

The case went all the way to a jury, which found in favor of the VA.  However, the jury also found that Palmquist’s disability discrimination complaints were a “motivating factor” in the decision not to hire him.  Still, the lower court entered judgment in favor of the VA because the jury did not find that disability complaints were the “but-for” (i.e., the sole) cause of the employment decision.

Palmquist appealed to the First Circuit, claiming that proving his disability complaints were a “motivating factor” in the decision not to hire him was enough to win his case.

“But-for” causation is the standard

The First Circuit Court of Appeals disagreed.  The court began its decision by noting that the issue – whether Palmquist had to show his disability discrimination complaints were a motivating factor or the “but-for” cause of his rejection – was a first for this court.  Therefore, it had to look at decisions in other jurisdictions to see how those courts had handled this issue.  In most cases, those courts treated analogous situations under the ADA as requiring an employee to prove that disability discrimination was the “but-for” cause of the employment decision.  In addition, the United States Supreme Court had looked at this issue in a case that involved the Age Discrimination in Employment Act (“ADEA”).  In that case, the Supreme Court ruled that the “but-for” causation standard applied, rather than the motivating factor standard.  The First Circuit pointed out that the language in the ADEA’s retaliation provision is almost identical to that of the Rehabilitation Act.  Therefore, in a way, the Supreme Court had already ruled on this issue.

Palmquist argued throughout that the “motivating factor” standard should apply because that is the standard used in cases brought under Title VII of the Civil Rights Act.  Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.  Under the Title VII “motivating factor” standard, anytime an employer’s decision is based (even in part) on discrimination against a protected characteristic, the employer is in trouble.

The First Circuit disagreed with Palmquist.  His claim was brought under the Rehabilitation Act, not Title VII.  Although the Rehabilitation Act has some language that suggests that it could follow Title VII on this issue, it also had language that mirrors the ADA.  As stated above, other courts have determined that the ADA uses the “but-for” causation standard, not the motivating factor standard.  The court concluded that it was more logical to align the Rehabilitation Act with ADA on this issue.  After all, both statutes protect employees against unlawful disability discrimination.  The Rehabilitation Act simply governs the conduct of federal agencies, while the ADA applies to employers with more than 15 employees.

Bottom line

This case is a win for employers.  It demonstrates that employees have a more difficult standard of proof in cases brought under the Rehabilitation Act and the ADA.  To win under either of these statutes, an employee has to prove that his or her disability, or disability-related complaints, was the “but-for” cause of the employment decision.  If the disability or complaint was only part of the reason, the employer might be able to escape liability.  Be careful though.  If an employee can show that even part of the reason for the employment decision was disability bias, the employer will have a difficult time showing that the other part was legitimate.  Contact your employment counsel if you have questions regarding federal or state disability law.

Article By: John Gannon, Esq.
Reprinted from the November 2013 issue of the  Massachusetts Employment Law Letter.