12.1 ADA EMPLOYMENT ACTIONS—ELEMENTS
As to the plaintiff’s claim that [his] [her] disability was the reason for the defendant’s decision to [[discharge] [not hire] [not promote] [demote] [state other adverse action]] [him] [her], the plaintiff has the burden of proving the following evidence by a preponderance of the evidence:
1. the plaintiff has a disability as that term is defined later in these instructions;
2. the plaintiff was a qualified individual as that term is defined later in these instructions; and
3. the plaintiff was [[discharged] [not hired] [not promoted] [demoted] [state other adverse action]] because of the plaintiff’s disability.
If you find that plaintiff has proved all of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
The ADA places on the plaintiff the burden of showing that the plaintiff is qualified. The plaintiff must show the ability to perform the essential functions of the job with or without a reasonable accommodation. 42 U.S.C. § 12112(b)(5)(A), 12111(8); Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir.2013); Cooper v. Neiman Marcus Group, 125 F.3d 786, 790 (9th Cir.1997) (stating elements).
An employee who commits an act of misconduct may be fired, regardless of whether he or she is disabled with the meaning of the ADA. Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.1996) (holding that while alcoholism is "disability" under ADA, employee’s arrest for criminal assault while intoxicated was nondiscriminatory reason for termination).
In Raytheon v. Hernandez, 540 U.S. 44 (2003), the Supreme Court addressed an employer policy not to re-hire employees who left the company for violating personal conduct rules such as illegal drug use. Id. at 46. Under a disparate treatment theory, a neutral no-rehire policy was a legitimate, nondiscriminatory reason under the ADA. Id. at 53-55. Because the plaintiff had failed to raise a disparate impact claim on a timely basis, id. at 49, the Court held that the question of whether the neutral no-rehire policy fell more harshly on drug addicts who were successfully rehabilitated could not be considered. Id. at 52, 55.
Title I provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a) (emphasis added). In Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir.2005), the Ninth Circuit relied on Title VII precedent to establish a "motivating factor" standard for causation under the ADA. Id. at 1065-66. However, more recently, the Supreme Court addressed the causation standard applicable to Age Discrimination in Employment Act (ADEA) claims in Gross v. FBL Financial Servs., 557 U.S. 167 (2009). The ADEA prohibits an employer from discriminating against any individual "because of such individual’s age." 29 U.S.C. § 623(a)(1). The Supreme Court declined to apply Title VII’s motivating factor test. The Court noted that 1991 amendments to Title VII, but not to the ADEA, provided that discrimination is established when a plaintiff shows the protected status was "a motivating factor" for the adverse employment action. Therefore, the Court held that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision." Id. at 180.
As with the ADEA, the 1991 "motivating factor" amendments to Title VII were not made to the ADA. The Ninth Circuit has not addressed the impact of Gross on the ADA. Two other circuits have concluded that the motivating factor test does not apply after Gross. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 318 (6th Cir.2012); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961-62 (7th Cir.2010).
The Supreme Court has held that, in a retaliation claim under Title VII, a plaintiff "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534 (2013). The Court found that the "because" language in the anti-retaliation provision (42 U.S.C. § 2000e3(a)) lacked any meaningful textual difference from the statutory provision at issue in Gross. 133 S. Ct. at 2528; see also Burrage v. United States, 134 S. Ct. 881, 887-889 (2014) (defining "results from" in Controlled Substances Act to mean "but for" causation). The Ninth Circuit has applied "but for" causation in retaliation claims under the ADA. T.B. v. San Diego Unified Sch. Dist., 795 F.3d 1067, 1088 (9th Cir.2015)