11th Circuit Upholds Higher Causation Standard in Disability Discharge Case

Takeaway: The “but-for standard” of causation under the Americans with Disabilities Act makes it more difficult for employees to prevail than the “motivating-factor standard.” As always, however, employers must proceed with caution in terminating employees with disabilities by acting evenhandedly and without pretext. In situations where the employer self-insures, the handling of information regarding individuals’ health care costs must be scrupulous. Otherwise, the employer risks a finding that a disabled employee’s high medical costs were the cause of a termination.

The 11th U.S. Circuit Court of Appeals joined the 2nd, 4th, 6th and 9th Circuits in holding that the switch from “because of” to “on the basis of” in the 2008 amendment to the Americans with Disabilities Act (ADA) did not change or affect the rule that a plaintiff must show an adverse employment action would not have occurred “but for” the plaintiff’s disability.

Accordingly, the appeals court upheld summary judgment against a long-time—and by all accounts excellent—employee on her ADA claim. She contended that her employer discriminated against her by terminating her to avoid paying its self-insured health care costs related to her multiple sclerosis (MS) and severe migraines. The employer responded that the employee’s position was no longer needed after most of her duties became automated and that it eliminated the position to cut expenses. The employer’s medical plan was administered by a third party, and the employer argued there was no evidence its decision-makers knew the employee’s health care costs. Moreover, the individuals the employee offered as comparators had different job duties.

The employee argued she was not required to show her disability was a but-for cause of her termination, but could simply show it was a motivating factor. She also appealed the award of $1,918 in discovery sanctions in favor of the employer. The 11th Circuit affirmed the grant of summary judgment in favor of the employer and the sanctions award against the employee.

While it was common knowledge at the company that the employee had MS, no one there ever said anything to her about her health care costs. After a few weeks’ deliberation, the employer informed the employee that it was eliminating her position to cut expenses; there was no mention of her disabilities or health care costs. The employee wished to remain at the company but did not apply to any open positions. She did ask if a new position could be created for her, but the employer declined.

The HR professional who advised management regarding the termination process did not have access to the health care data. The decision-makers did have access to the system; they said they had not used the system to view any individual employee’s health care costs.

Other circumstantial evidence included the fact that approximately two years before the employee’s termination, the employer once or twice told employees to go to the doctor only if medically necessary and that rising health care costs affected all employees’ health care premiums. Also, nine months after the employee’s termination, the health plan administrator told her that continuation coverage would no longer cover her particular migraine medication due to its cost.

The employee’s evidence failed to create a genuine factual dispute that the employer’s reasons for firing her were both false and that the true reason was her high health care costs. While the decision-makers and head of HR knew of the employee’s disabilities, her evidence did not show that anyone knew her specific individual health care costs or that the employer’s nondiscriminatory reasons for her termination were false. Finally, she did not present a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.

Accordingly, the 11th Circuit held, a reasonable jury could not infer discriminatory intent based on the fact that the employee’s proffered comparators were not terminated, because: 1) the employee had different job duties; 2) her duties were automated to a greater extent; and 3) the employer eliminated a significant number of other positions.

Akridge v. Alfa Insurance Cos., 11th Cir., No. 22-12045 (Feb. 16, 2024).

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.