Does "Because Of" Mean "On the Basis Of"?

In Serwatka v. Rockwell Automation, the Seventh Circuit decided that the ADA does not permit mixed-motive claims. The Court followed the analysis set forth in Gross v. FBL Fin. Servs., Inc., in which the US Supreme Court held that the language of the ADEA required plaintiffs to demonstrate that age was the "but for" cause of the employment decision. As such, plaintiffs cannot rely on a mixed-motive theory when bring age or disability discrimination claims. They can still, of course, rely on mixed-motives in connection with Title VII claims.

Serwatka raises an interesting question, however. Specifically, in footnote 1, the Court notes that its analysis may be different if it were analyzing the ADA as amended by the ADA Amendments Act of 2008. That Act removed "because of" in favor of "on the basis of." According to the Court, "[w]hether 'on the basis of' means anything different from 'because of,' and whether this or any other revision to the statute matters in terms of a mixed-motive claim under the ADA" remains to be seen as they "are not questions that we need to consider in this appeal." As such, it remains to be seen whether a plaintiff may proceed under a mixed-motive theory to establish an ADA claim after passage of the Amendments. Resolving that issue will require determining if "because of" means "on the basis of."



Click here for a copy of the ADA Amendments Act of 2008.

Click here for a copy of the Court's decision.