Retroactive Application? -- NO

In Milholland v. Sumner County, the Sixth Circuit Court of Appeals (Rogers, J.) held that the ADA Amendments Act of 2008 does not apply retroactively. According to Judge Rogers "there is nonetheless a well-settled presumption against application of . . . new statutes that would have genuinely retroactive effect." According to Judge Rogers "Congress can only retroactively overturn that interpretation when its intent to reach conduct preceding the corrective amendment . . . clearly appears." Not so with the ADA Amendments Act of 2008, so no retro.

In Milholland this made all the difference. Milholland was pursuing a "regarded-as" claim (related to her arthritis) under the ADA. Prior to the Amendments, Milholland would have had to establish that her employer regarded her as having an impairment that substantially limits one or more of her major life activities. After the Amendments, her burden is lowered as she would only have to establish that her she was subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

Milholland couldn't establish that her employer regarded her as having an impairment that substantially limits one of her major life activities and the Sixth Circuit affirmed the district court's grant of summary judgment for the employer.

Click here for a copy of the opinion.

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.