Anderson on Causation and Reasonable Accommodation After Gross

Just out: Cheryl L. Anderson, Unification of Standards in Discrimination Law: The Conundrum of Causation and Reasonable Accommodation Under the ADA, 82 Miss. L.J. 67 (2013).  From the introduction:

In the post-Gross regime, causation could similarly creep into another aspect of reasonable accommodation analysis--as a requirement that plaintiffs show their disability is a but-for cause of their need for the accommodation. There is case law rejecting ADA Title I employment claims because the plaintiffs could not show they needed the requested accommodations in order to do their job. The but-for test could take it a step further and require plaintiffs to show their disability is the but-for reason the accommodation itself is necessary. Although not directly the issue decided in Gross, such a rule may be a fairly simple extension of Gross's understanding of the default rules of causation. At least in the Seventh Circuit, a similar but-for standard has already crept into ADA Title II analysis. The Seventh Circuit requires Title II plaintiffs establish that their need for accommodation is based on something that is not a characteristic shared with the general public. The leap from Title II to Title I for applying such a standard may not be too large. 

Why might courts make this leap? As has been extensively discussed in the literature, reasonable accommodation law has an uneasy fit into our understanding of discrimination law. Reasonable accommodation claims do not require proof of intent to discriminate. They also do not require proof of an adverse effect on an entire group of individuals.  Courts have shown themselves uneasy about interpreting the law in a way that appears to give preference to a particular individual. This unease has been especially apparent in circumstances when an employee with a disability seeks reassignment to a vacant position as a reasonable accommodation and the employer asserts another employee is entitled to or more qualified for that position. Focusing on causation may mitigate that unease, because it seems to distinguish between those whose disadvantage is related to their disability and those who will receive an unfair advantage over others. 

In general, the Gross but-for standard eases courts' concerns about discrimination claims because it requires plaintiffs to carry the burden of proof throughout the process of proving discrimination. That stands in contrast to the statutory provisions setting out the ADA's reasonable accommodation mandate, which requires plaintiffs establish only that an accommodation is reasonable and then shifts the burden to employers to prove the accommodation poses an undue hardship on the business. It has been suggested that Gross is the product of a Court majority hostile to imposing burdens on the employer, perhaps out of fear that doing so will make it too easy for undeserving plaintiffs to prevail. Thus, Gross insists that the risk of sorting out whether discrimination was in fact the reason for an action rests firmly with the plaintiff. The Court could apply a similar construct to accommodation claims and do an end run around the undue hardship burden-shift: The plaintiff could be required to show that what she seeks is indeed related to her disability in a way that distinguishes her limitations from the barriers faced by the general public. Otherwise, much as the “motivating factor” standard in a mixed-motive claim is (arguably) overbroad in finding discrimination when legitimate factors predominate, the reasonable accommodation standard would be (arguably) overbroad in providing accommodations to individuals not actually burdened by their disability but by the same burdens everyone else faces. As this Article will demonstrate, however, that reasoning misconstrues the reasonable accommodation mandate.