[blindlaw] Supreme court Gross and the ADA

Tue Jul 7 14:28:47 UTC 2009

Well, I haven't heard from anyone as yet.  In essence, my concern is the
reasoning in the decision could be applied to disability discrimination
cases.  That is, reading 'because of' as meaning 'but for' could be applied
by district courts (probably splitting circuits) in disability cases even
though Gross was about age discrimination. 

This may sound like semantics but apparently the differences are meaningful.
Attorneys in employment discrimination appear to be saying that
interpretation makes it nearly impossible to prove (absent something similar
to 'I am firing you because you are old') age discrimination.  From what I
am reading, it sounds like the employer could even say something like 'yes,
age plays a role in moving you to this demeaning job, but the move is more
about your computer skills' and not be violating Title VII under Gross
because the move to the demeaning job was not 'but for' the employee's age -
it was also motivated by the employee's lack of computer skills.  

It seems to me that the implications of this reasoning for the disabled are
pretty harsh. When I did research last night in the language in Title VII a
couple of nights ago (it was late so maybe I was seeing things) I saw the
same 'because of' language.  Thus, Gross could be applied to disability
discrimination cases.

I believe that Congress is considering amending Title VII - Age
Discrimination in Employment to change 'because of' to 'motivated by' and
probably will as the AARP is a very powerful lobby.  I am going to contact
my Congresspersons and ask them to consider doing so for the disability
portion of Title VII (if they weren't already).  As pat of the amendments I
plan on asking them to include 'Congressional intent' language that says a
'but for' was never intended to be the test in disability discrimination
cases.

Just a thought...

-----Original Message-----
From: blindlaw-bounces at nfbnet.org [mailto:blindlaw-bounces at nfbnet.org] On
Behalf Of Keith Vick
Sent: Monday, July 06, 2009 9:41 PM
To: 'NFBnet Blind Law Mailing List'
Subject: Re: [blindlaw] Supreme court Gross and the ADA

Recent decision.  No cite.  I thought the ADA law community would already be
somewhat versed in it by now.

http://www.supremecourtus.gov/opinions/08pdf/08-441.pdf

-----Original Message-----
From: blindlaw-bounces at nfbnet.org [mailto:blindlaw-bounces at nfbnet.org] On
Behalf Of Steve P. Deeley
Sent: Monday, July 06, 2009 9:03 PM
To: NFBnet Blind Law Mailing List
Subject: Re: [blindlaw] Supreme court Gross and the ADA

Can you give us a cite on the case?
Steve
----- Original Message ----- 
From: "Keith Vick" <keith-vick at msn.com>
To: "'NFBnet Blind Law Mailing List'" <blindlaw at nfbnet.org>
Sent: Monday, July 06, 2009 4:30 PM
Subject: [blindlaw] Supreme court Gross and the ADA

> Hi,
>
> I was wondering if any of the esteemed colleagues of this mailing list 
> have
> any remarks regarding the decision in Gross (08-441) and its applicability
> to ADA - Employment.
>
> Thanks,
>
> Keith Vick
>
>
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