As we reported back in June, the Supreme Court recently ruled in Univ. of Tex. Sw. Medical Center v. Nassar that while employees’ Title VII discrimination claims must meet the “motivating factor” test, employees’ Title VII retaliation claims must meet the higher “but-for” standard, meaning that, in order to prevail on a claim for retaliation, employees would have to demonstrate that “but for” their alleged protected activity, their termination (or other adverse action) would not have occurred. The Supreme Court largely based the decision on a change to the statutory language of Title VII. Congress had changed the language of Title VII relating to discrimination claims to include the phrase “motivating factor,” but left the language “because of” in the part of Title VII relating to retaliation claims, which the Court interpreted to mean that retaliation claims were not subject to the “motivating factor” test but rather “but-for” standard implied by the plain meaning of the phrase “because of.”
While Nassar was a clear victory for employers with respect to Title VII retaliation claims, the Court did not address whether its logic and ruling would apply to other employment claims, such as claims brought under the Age Discrimination in Employment Act (ADEA) or the Americans with Disabilities Act (ADA). The U.S. District Court for the District of Oregon recently addressed this question and ruled that Nassar does not affect claims under the ADA. Siring v. Or. State Bd. of Higher Educ.
In Siring, the District Court directly addressed the question of whether Nassar alters the causation standard applied to ADA claims. Before Nassar, the standard applicable to ADA claims was the “motivating factor” test. However, the ADA contains the language “on the basis of,” which the Oregon State Board of Higher Education argued is similar to “because of” and, therefore, Nassar should apply. The District Court rejected this reasoning for several reasons. First, Nassar applied the “but-for” standard to Title VII retaliation claims, not Title VII discrimination claims, so it does not follow that Nassar should be extended to ADA discrimination claims. Second, the District Court noted that the ADA was amended to change the language from “because of” to “on the basis of,” further distinguishing Title VII retaliation claims from ADA discrimination claims. Lastly, the District Court pointed out that the Supreme Court made no indication in Nassar that it applied beyond Title VII retaliation claims.
Although the Siring decision is not binding on other circuits, the decision suggests that federal courts may be reluctant to extend the helpful logic of Nassar beyond the limited scope of Title VII retaliation claims.