Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view.
Justice Gorsuch, Bostock v. Clayton County, Georgia[1]
This pithy line in the recent Supreme Court LGBT rights decision reminded me of another judge’s retort in an ADA case. Advocates had challenged the District of Columbia’s keeping thousands of people in nursing homes unnecessarily, a type of claim called an Olmstead claim after a landmark Supreme Court case. Responding to a multi-page discourse about causation and proof structures, Judge Henderson of the federal D.C. Circuit Court of Appeals held simply: “treating individuals in institutions when they wish to and could be treated in the community is discrimination because of disability.”[2]
Justice Gorsuch made a similar move when he held that discrimination because of sexual orientation and gender identity is illegal. Such discrimination, he explains, is discrimination “because of” sex. The fact that the discriminator is not targeting sex—is not trying to give women a hard time, for example—doesn’t matter.
Simplifying Causation
This move cuts a Gordian knot of discrimination caselaw. “But for” causation—a standard long thought by proponents and detractors alike to be quite narrow[3]— is not the get-out-of-discrimination-free card we thought it was. It is not sole causation. Moreover, cause is not intent. The ADA does not require proof someone intended to cause discrimination. This insight will reverberate in the ADA world.
For years, some defendants argued—and some courts incorrectly accepted—that the ADA and similar laws only prohibit things done with the intent to harm people with disabilities.[4] The confusion was perhaps understandable. Beginning in about the 1980s, the Supreme Court under Justice Rehnquist dramatically narrowed the ability to sue for race discrimination by imposing just such an intent requirement. Cases about other kinds of discrimination quickly fell in line, so it was not surprising that some have tried to stretch this thinking to disability law.[5]
Law professor Russell Robinson notes that in these post-1980s cases the Supreme Court effectively sanctioned structural inequality, for African-American people and others. The Court, Professor Robinson argues, “turned its back on” people with disabilities and all disadvantaged groups—with “exceptionalism” (favorable treatment) for LGBT people. While Bostock’s holding might seem to vindicate that claim, its reasoning may point in a different direction.
Rights that Benefit Everyone
A different explanation for the LGBT cases is offered by Professor Kenji Yoshino. He argues that a “new equal protection” is emerging—an emphasis on universal rights for all, rather than prohibitions on comparative disadvantage for protected groups. He notes this trend not only in LGBT cases, but the ADA Title II case Tennessee v. Lane, which allowed people with disabilities to use the ADA to sue states for stair-free access to courthouses.[6]
The ADA as a Model of Equality Jurisprudence?
As Justice Marshall observed about a predecessor law to the ADA, illegal disability discrimination has always encompassed not only “invidious animus” but “thoughtlessness and indifference.”[7] It had to, because the key for people with disabilities was not just equal treatment, but equitable results.[8] ADA cases that apply this correct understanding could light the way for causation analysis in equality cases following Bostock.
There are challenges to drawing inspiration from the ADA or the Supreme Court’s LGBT cases for equality jurisprudence more broadly. Such cases involve people whose disadvantage is likely to be manifest in the very families of some judges; racial bias, in contrast, was baked into the founding of our country as a caste system of segregation. Still, removing the focus on the mind’s bias, for disability cases and across the board, could move us away from divisive questions and toward shared, structural solutions.
[1] No. 17-1618, 2020 WL 3146686, at *7 (U.S. June 15, 2020).
[2] Brown v. D.C., 928 F.3d 1070, 1087 (D.C. Cir. 2019).
[3] See, e.g. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc) (divided opinion debating ADA Title I causation standard).
[4] See, e.g. Doe v. Oklahoma City Univ., 406 F. App’x 248, 252 (10th Cir. 2010) (“The district court’s statement that a showing of wrongful intent is required under Title III of the ADA was . . . incorrect.”).
[5] See, e.g. Russell K. Robinson, Unequal Protection, 68 Stan. L. Rev. 151, 153 (2016).
[6] Kenji Yoshino, The New Equal Protection, 754 Harv. L. Rev. 747 (2011); Tennessee v. Lane, 541 U.S. 509 (2004).
[7] Alexander v. Choate, 469 U.S. 287, 295 (1985).
[8] A landmark work is Jacobus tenBroek & Floyd W. Matson, The Disabled and the Law of Welfare, 54 Cal. L. Rev. 809 (1966).
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