This article will explore the question of whether a person alleging a violation of the Americans with Disabilities Act has the right to seek a mixed motive jury instruction. As we will see, the answer to the question could well depend upon whether or not the claim precedes the advent of the ADAAA (Americans with Disabilities Act Amendments Act). If the claim precedes the ADAAA, the answer is probably, but not necessarily, no. If the claim is about matters that occurred after the effective date of the ADAAA, January 1, 2009, a good argument can be made that mixed motive jury instructions are still in play.
Background. By way of background, we first have to discuss what is a mixed motive jury instruction. A mixed motive jury instruction comes from the Civil Rights Act of 1991 which states, "an unlawful employment practice is established when the complaining party demonstrate that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. " In other words, if race, color, religion, sex, or national origin is involved, then all the plaintiff has to show to receive some relief is that the employer was motivated by discrimination based on race, color, religion, sex, or national origin. The Civil Rights Act of 1991 does allow for a defense if the employer can show that even though they were motivated in part by the discrimination based upon race, color, religion, sex, or national origin, if the adverse action would have occurred anyway, then the damages the plaintiff can receive are limited to declaratory relief, injunctive relief, and attorney fees and costs that are directly attributable only to the motivating factor claim. Further, in such an eventuality, the court is not allowed to award any damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment. Since employment discrimination often involves a variety of motives, whether a mixed motive jury instruction is viable for a person alleging discrimination under the Americans with Disabilities Act becomes a very important point.
Gross v. FBL Financial. To answer the question of whether a mixed motive jury instruction is still a possibility for an Americans with Disabilities Act claim, you have to start with Gross V. FBL Financial Services, Inc., which is not an Americans with Disabilities Act case at all, but rather an Age Discrimination in Employment Act case. In Gross, Gross began working for FBL Financial Group Inc. in 1971. By 2001, he held the position of claims administration director. In 2003, he was 54 years old and was reassigned to the position of claims project coordinator. Simultaneously, FBL transferred many of his job responsibilities to a newly created position called claims administration manager. That position was given to a person whom had been previously supervised by the plaintiff and was then in her early 40s. Although Gross and the person who became the position claims administration manager received the same compensation, Gross considered it a demotion because of the reallocation of job responsibilities. Gross then filed suit alleging violation of the Age Discrimination in Employment Act. At trial, over FBL's objections, the District Court issued a motivating factor jury instruction (mixed motive). The jury then returned a verdict for Gross, awarding him $46,945 in lost compensation. Eventually, the matter worked its way all the way to the U.S. Supreme Court. Interestingly enough, the case did not go to the U.S. Supreme Court on the issue of whether a mixed motive jury instruction was proper in such cases. Rather, the question originally submitted to the U.S. Supreme Court concerned whether plaintiff must present direct evidence of discrimination in order to obtain a mixed motive jury instruction under the Age Discrimination in Employment Act of 1967.
Since the United States Supreme Court in Gross decided that a mixed motive jury instruction would never be proper in an Age Discrimination in Employment Act case, they did not reach the question of whether direct evidence needed to be presented to obtain such an instruction. In holding that a mixed motive jury instruction was never proper in an Age Discrimination in Employment Act case, the Court reasoned as follows. First, the Court noted that unlike title VII of the Civil Rights Act, the Age Discrimination in Employment Act text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Further, Congress neglected to add such a provision to the Age Discrimination in Employment Act when it amended title VII to add the mixed motive section of the Civil Rights Act of 1991. Second, the Court noted that the Age Discrimination in Employment Act prohibited discrimination because of an individual's age. The Court then turned to Webster's third new international dictionary and Oxford English dictionary to say that "because of", means by reason of. The Court then drew from this that a claim under the Age Discrimination in Employment Act case is therefore a situation where the plaintiff has to show that the age discrimination was the "but for" cause of the employer's adverse action.
The question becomes then how does Gross apply to the Americans with Disabilities Act (ADA). Obviously, Gross is an Age Discrimination in Employment Act and not an ADA case. That said, the reasoning of Gross would seem to be quite persuasive to an ADA case because of the similarities, especially prior to the ADAAA, of the ADA and the Age Discrimination in Employment Act. The noteworthy similarities are that the ADA, certainly prior to the ADAAA, contained no language, implicitly or otherwise, that would suggest motivating factor was explicitly linked to the ADA. Second, the ADA, prior to the ADAAA, also contained the "because of," language. Therefore, would a court dealing with an ADA claim prior to the ADAAA effective date reach the same conclusion?
Serwatka v. Rockwell Automation, Inc. The seventh circuit in Serwatka v. Rockwell Automation, Inc. was faced with this very question. In Serwatka, Serwatka filed suit against her former employer, Rockwell Automation, Inc. under the ADA alleging that Rockwell had discharged her because he regarded her as being disabled even though she could perform the essential functions of her job. The jury agreed with Serwatka. However, the jury said that while the defendant terminated the plaintiff due to a perception that she was substantially limited in her ability to walk or stand, the jury also said that the defendant would have terminated the plaintiff anyway even if they didn't believe that she was substantially limited in her ability to walk or stand, but everything else remained the same. Not surprisingly, the district court treated those answers as a mixed motive finding. Rockwell contended that such a finding did not enable Serwatka to obtain a judgment in her favor and to the relief that the district court awarded her.
In holding that a mixed motive jury instruction is not proper in an ADA case, the seventh circuit reasoned as follows. First, the seventh circuit cited to Gross noting that because the Age Discrimination in Employment Act lacked the language found in title VII expressly recognizing mixed motive claims, such claims were not authorized by the Age Discrimination in Employment Act. The seventh circuit then went on to say that Gross strongly suggested that unless the antidiscrimination statute contains comparable language suggesting a mixed motive framework, a mixed motive claim does not lie under that statute. Second, the court noted that the ADA does not have any provision akin to title VII mixed motive provision and that the remedy provisions of the ADA do not reference specifically the mixed motive provisions of the Civil Rights Act of 1991. Finally, the seventh circuit cited to a case involving the Civil Rights Act of 1991 and the retaliation provisions in which it held that since the retaliation provisions did not specifically link up with any mixed motive provision, a mixed motive jury instruction was not proper there either.
The ADAAA. The critical question is whether you get to the same place as Serwatka under the ADAAA. The answer to that question is far from clear. In fact, Serwatka makes that point very clear itself. More specifically, Serwatka notes that the ADAAA, which took effect on January 1 of 2009, made substantial changes to the ADA. More specifically for our purposes, the language of the statute was modified to prohibit an employer from discrimination against an individual "on the basis of disability." However, since the occurrences in the case before them all predated the effective date of the ADAAA, it was not a question that they had to consider.
That said, it most certainly is a question that attorneys and their clients have to consider now. Can an argument be made that despite Gross a mixed motive instruction is still possible after the advent of the ADAAA? The answer is yes. An attorney making such a claim would want to go about it in the following way. Of course, whether this will be successful, only the courts can decide, but nevertheless this is a roadmap that might well work. First, you can start with the Serwatka case where the seventh circuit specifically says that they are not discussing whether they would reach the same conclusion under a claim arising under the ADAAA. Second, the United States Supreme Court loves to look at dictionaries in trying to figure out what a term in a statute means. There are lots of dictionaries out there and many of them are online. If you look up the word "basis", in Websters online dictionary, you find several definitions, many of which are useful for purposes of this discussion, including: "a relation that provides the foundation for something", "the most important or necessary part of something,” "that which supports", and "the principal component part of a thing." None of these particular definitions suggests that, "on the basis" refers to a single reason. From the MacMillan dictionary and thesaurus, you see, "used for giving the reason why something is done." The sentence that MacMillan gives you is, "don't make your decision on the basis of cost alone.” MacMillan by using the word " alone,” strongly implies that the phrase, "on the basis of" does not restrict itself to one cause. This reading of the online dictionaries also comports with the everyday use of the term. If someone says something is “on the basis of”, a reasonable person would not assume the reason given was the only reason, perhaps the main reason but not the only.
Second, a review of the legislative history of the ADAAA is strongly suggestive that Congress meant to include mixed motive jury instructions in their amendments to the Americans with Disabilities Act. A legislative history search on Westlaw for the ADAAA turned up to two House reports, H.R. Rep. numbered 110-730(I) and 110-730(II). In H.R. Rep. 110-730(I), the report specifically discusses "discrimination on the basis of disability." More specifically, the report describes the change from "because", to "on the basis of" in the following way:
"This more direct language, structured like title VII, ensures that the emphasis in questions of disability discrimination is properly on the critical inquiry of whether a qualified person has been discriminated against on the basis of disability, and not unduly focused on the preliminary question of whether a particular person is even a ‘person with a disability' under the act at all.”
Even more significant, is a discussion about why it ultimately was decided to keep the term "qualified individual," within the Americans with Disabilities Act. It turns out that getting rid of the term "qualified," would have led to an issue as to whether the burden shifting framework of Texas Department of Community Affairs v. Burdine  would still apply if the term "qualified," was lifted from the law. More specifically, the House report says:
Developed in the context of title VII, the Burdine framework applies to ADA employment cases that involves indirect evidence of discrimination. Under Burdine, a plaintiff carries the initial burden of establishing a prima facie case that: (1) (s)he met the qualifications of the job; (2)(s) he suffered an adverse job action; and (3) the adverse action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class. 
The House report continues, “If the plaintiff makes his or her prima facie case, the burden of production shifts to the defendant to articulate a 'legitimate, nondiscriminatory reason for the employee rejection.' The defendant does not need to 'persuade the court that it was actually motivated by the proffered reasons.' Rather, the employer 'bears only the burden of explaining clearly the nondiscriminatory reason for its actions.'”  The House report further continues, “If the defendant meets this burden of production, the plaintiff then carries a burden of persuasion to 'prove by a preponderance of the evidence that legitimate reasons offered by the defendant were not it's true reason, but were a pretext for discrimination.'”  The House report concludes by stating “It is the intent of the committee that the Burdine framework remains intact and is not affected by the amendments.”
The plain meaning of the above, that motivating factor is intended to be a part of the Americans with Disabilities Act as amended, is also backed up by Burdine itself. In particular, Burdine states that after the employer makes a showing of reasons as to why the plaintiff suffered the adverse action after the plaintiff has met his or her prima facie case, it then becomes up to the plaintiff to succeed with his or her burden of persuasion by showing directly that a discriminatory reason more likely motivated (emphasis added), the employer or indirectly by showing that the employer explanation is unworthy of credence. While H.R. Rpt. 110-730(II) is much more brief on this point, it does say that the purpose of the change from "because" to "on the basis of," is to harmonize the Americans with Disabilities Act with other civil rights laws (emphasis added), by focusing on whether the plaintiff has proven that the discrimination was based on personal characteristics, disability, and not on whether the plaintiff has proven the characteristic exists.
Where Does This Leave Us? With respect to claims arising under the Americans with Disabilities Act prior to the ADAAA, Serwatka is probably the rule. You could make an argument based on the legislative history cited in this article involving the ADAAA that because of the legislative history cite to Burdine, Congress never intended to get rid of motivating factor jury instructions in ADA cases. That said, you are still faced with the fundamental problem vis-à-vis Gross that the ADA even as amended does not explicitly tie into mixed motive. With respect to cases occurring after the effective date of the ADAAA, a plaintiff attorney is on better ground. The plain meaning of, "on the basis," as we have seen, is strongly suggestive of allowing for more than one reason. Also, dictionaries and the legislative history support this conclusion as well. The problem that a plaintiff lawyer may have is akin to the parol evidence rule. That is, the plaintiff will have to convince the court that the change from "because" to "on the basis," is inherently ambiguous, and therefore, it is perfectly permissible to bring in what dictionaries and the legislative history say. This may not be as simple as it appears as a court may refuse to look at legislative history if the statutory term is clear. Nevertheless, common uses of the term "on the basis," which, as mentioned above, is backed up by dictionaries and legislative history, strongly suggests that a plaintiff would have a very good chance of convincing a court that a claim arising under the Americans with Disabilities Act after the effective date of the ADAAA is a claim that can receive a mixed motive jury instruction.
In conclusion, is a mixed motive jury instruction dead for claims preceding the ADAAA? Probably, though not necessarily if you can convince the court by piggybacking the ADAAA legislative history onto the claim by saying that while mixed motive does not explicitly appear in the Americans with Disabilities Act, Congress by its wording in the legislative history of the ADAAA must have intended for mixed motive to still be a part of the equation in cases arising prior to the effective date of the ADAAA. Is a mixed motive jury instruction dead for cases after the effective date of the ADAAA? Probably not, though you still have the problem in Gross where they say that "because" and "on the basis" mean the same thing. Even so, it just doesn't make sense that Congress would go out of its way to change "because" to "on the basis," if the terms meant exactly the same thing. Also, as mentioned above, plain meaning, dictionaries, and legislative history all suggest that the change to "on the basis," is more than cosmetic.
 42 U.S.C.A. § 2000e-2(m) (WL, Current through P. L. 112-54 (Excluding P. L. 112-40) approved 11-12-11).
 42 U.S.C.A. § 2000e-5(g)(2)(B)(i) (WL, Current through P. L. 112-54 (Excluding P. L. 112-40) approved 11-12-11).
 42 U.S.C.A. § 2000e-5(g)(2)(B)(ii) (WL, Current through P. L. 112-54 (Excluding P. L. 112-40) approved 11-12-11).
 See Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2358-59 (2009) (J. Breyer concurring).
 129 S. Ct. 2343 (2009).
 Serwatka v. Rockwell Automation Inc., 591 F.3d 957, 962 (7th Cir. 2010).
 591 F.3d 957 (7th Cir. 2010).
 See Id. (Emphasis added).
 Eg. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 196-198 (2002).
 Webster's Online Dictionary (Princeton University 2006) at http://www.websters-online-dictionary.org/definition/basis.
 Macmillan Dictionary and Thesaurus (Macmillan Publishers Limited 2009-2011) at http://www.macmillandictionary.com/dictionary/american/basis.
 Id. (emphasis added).
 H. R. Rpt. 110-730(I) at 16 (June 23, 2008) (emphasis added).
 Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
 H. R. Rpt. 110-730(I) at 17 (June 23, 2008).
 Burdine, 450 U.S. at 256.
 See H.R. Rpt. 110-730(II) at 18 (June 23, 2008).
 See Blum v. Stevenson, 465 U.S. 886, 896 (1984); See also, Conroy v. Ansikoff, 507 U.S. 511, 519 (1993) (J. Scalia concurring).
 Gross, 129 S. Ct. at 2350.
William D. Goren is a Professor, Paralegal Program Coordinator, and ADA Instructional Coordinator at South Suburban College in South Holland, Illinois. He is the author of the book Understanding the Americans with Disabilities Act. When not teaching, he focuses his practice on ADA/Rehabilitation Act compliance through consulting, training, and expert witness services. Mr. Goren received his Bachelor’s Degree from Vassar college, his J.D. from the University of San Diego, and his LL.M. in health law from DePaul University.