Judge Jane B. Stranch has joined the growing group of judges who are itching to have the entire Sixth Circuit revisit a disability law decision that goes against the bulk of authority in other circuits.
The Sixth Circuit is in the distinct minority of jurisdictions that require plaintiffs suing under the Americans with Disabilities Act (ADA) to show that their disability was the “sole reason” they were fired from their jobs. See “6th Circuit: Go ahead, take another crack at this”
Most other circuits use a “motivating factor” standard.
Since 1996, when a 6th Circuit panel issued the “sole reason” standard in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), other panels have had to fall in line because one panel can’t overrule another.
Some judges have openly suggested that Monette was incorrectly decided. Judge Richard Allen Griffin, concurring in Lewis v. Humboldt Acquisition Corp., is one of them.
And Judge Gilbert Merritt, who wrote the majority opinion in Lewis, broadly hinted that plaintiff’s counsel should seek en banc rehearing of the case.
Indeed we should, said Stranch, concurring in Whitfield v. State of Tennessee, et al. Stranch said that the “sole reason” standard was borrowed from the federal Rehabilitation Act, which:
prohibits discrimination against an individual “solely by reason of his or her disability,” 29 U.S.C. § 794(a)[.]
[T]he ADA prohibits discrimination’on the basis of’ the individual’s disability, 42 U.S.C. § 12112(a). While the text of the RA mandates the sole motivation standard, no derivation of the word “sole” appears in any liability provision of the ADA. …
I take this opportunity to lend my voice to the others that have urged the en banc court to reconsider our initial importation of the sole motivation standard from the RA into the ADA. I do not find our position justifiable in light of the tenets of statutory construction.
Michael L. Weinman of Jackson, Tenn., the plaintiff’s attorney in Lewis, says he will pursue an en banc hearing.