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Is it Harder to Prove Disability Discrimination Than Race Age or Gender Discrimination

Posted by David P. Martin | Apr 11, 2024 | 0 Comments

Yes, according to the recently decided Akridge v. Alfa Ins. Cos., No. 22-12045, at *37 (11th Cir. Feb. 16, 2024). It all has to do with the causation test used. Race, gender, sex and other forms of Title VII discrimination use a motivating factor causation test. Age discrimination does as well. However, under the Americans with Disabilities Act (ADA), the ‘but-for” causation test is used, which is harder to meet. That result hardly seems fair, but it is the law in the 11th Circuit.

Ms. Akridge contended that Alfa discriminated against her by firing her to avoid paying $10-$12,000 per month toward medication she needed to control muscular sclerosis and severe migraine headaches. Alfa Mutual Insurance Company (Alfa) had a self-insured medical plan. It was paying for medical care for employees out of its own fund. It had an interest in keeping those medical expenses down to a minimum, and at least one or two times it urged employees to only go to the doctor if it was absolutely necessary. Alfa made some changes within the company, and by using automation, decided it would let some people go, including Ms. Akridge. Some people were moved to other roles, but Ms. Akridge was terminated.

Ms. Akridge, of course, signed up for COBRA after her termination, paying 102% of the medical coverage cost. While COBRA was expensive, it was far less than $10,000-$12,000 per month. About nine months later, Alfa amended its medical plan to exclude from payment the medications Ms. Akridge was taking. Ms. Akridge was shocked and demoralized. She could hardly believe these events had occurred. She filed a lawsuit against Alfa.

Ms. Akridge, while acknowledging that Alfa was automating some of her job duties, contended she was fired in part because of the significant expense of her medical care. She asserted that she should only have to prove that her disability was a motivating factor for her termination and not the “but-for” cause of her termination. The 11th Circuit disagreed with Ms. Akridge and said that while Title VII forms of discrimination such as race, gender, or sex do use the much easier “motivating factor” standard, Congress did not use the Title VII language in the ADA. Therefore, Congress must have meant for these claims to be much harder, and courts must use the but for causation standard.

The Eleventh Circuit explained, “An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision.” However, in an ADA claim, the claimant is required to show that the causal link between the injury and wrong was so close that the injury would not have occurred but for the wrongful act. Thus, if the health plan were amended to exclude migraine and MS medication at the time of termination rather than waiting nine months, that might be evidence in favor of Ms. Akridge's case.

Judge Abudu on this panel concurred in the result of the opinion but disagreed on this more difficult standard for ADA cases. She contended that a motivating factor was enough and convincingly outlined the history of the ADA, the amendment, and court interpretations.

The other two judges pushed back contending that this dissent was really arguing that “but for” causation meant “sole factor” causation. The majority asserted that it was a long standing law that “there can be multiple but-for causes of an adverse employment action”.  In an effort to make this seem less harsh, the majority tried to explain, “… an ADA claimant need only show that her disability was one such cause, i.e., one "determinative . . . decision-making factor." Still, making a disability claim harder to prove than race, gender, or even age discrimination does not seem to be what Congress intended. In the 11th that is what we have.



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David P. Martin

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