Full opinion text
SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C.J., BOGGS, GIBBONS, ROGERS, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, JJ„ joined. CLAY, J. (pp. 322-25), delivered a separate opinion concurring in part and dissenting in part, in which MARTIN, J., joined. STRANCH, J. (pp. 325-31), delivered a separate opinion concurring in part and dissenting in part, in which MOORE, COLE, and WHITE, JJ„ joined. DONALD, J. (pp. 331-42), delivered a separate opinion concurring in part and dissenting in part. OPINION SUTTON, Circuit Judge. When Susan Lewis filed this lawsuit in 2007, Title I of the Americans with Disabilities Act (ADA) prohibited discrimination “because of’ the disability of an employee. 42 U.S.C. § 12112(a), Pub.L. No. 101-336, Title I, § 102, 104 Stat. 327, 331 (1990) (amended 1991). When it came time to present her ADA claim to a jury, each party urged the district court to put a different gloss on this language. The company asked the court to instruct the jury that Lewis could prevail only if the company’s decision to fire her was “sole[ly]” because of Lewis’s disability, a term that appears in the Rehabilitation Act but not in the ADA. Lewis asked the court to instruct the jury that she could prevail if her disability was “a motivating factor” in the company’s employment action, a phrase that appears in Title VII but not in the ADA. Consistent with the Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), we see no reason to insert the one addendum (“solely”) or the other (“a motivating factor”) into the ADA. As the district court’s jury instructions did not comply with all of these requirements, we reverse and grant Lewis a new trial. I. In March 2006, Humboldt Acquisition Corporation dismissed Lewis from her position as a registered nurse at one of the company’s retirement homes. Lewis sued Humboldt under the ADA in March 2007, claiming that Humboldt fired her because she had a medical condition that made it difficult for her to walk and that occasionally required her to use a wheelchair. Humboldt responded that it dismissed Lewis based on an outburst at work, in which she allegedly yelled, used profanity and criticized her supervisors. The case went to a jury. At the close of the trial, Lewis asked the court to instruct the jury that if “the complained of discrimination was a motivating factor in the adverse employment decision,” she should prevail. R.57 at 5 (emphasis added). The district court refused the request. It instead adopted the company’s proposed instruction — that Lewis could prevail only if “the fact that [the] plaintiff was a qualified individual with a disability was the sole reason for the defendant’s decision to terminate [the] plaintiff.” R.100 at 14 (emphasis added). The jury ruled for the company. II. In adopting the company’s proposed instruction, the district court did not walk alone. For the past seventeen years, our court has required district courts to instruct juries that ADA claimants may win only if they show that their disability was the “sole” reason for any adverse employment action against them. The term crept into our ADA jurisprudence in Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir.1995), which involved claims under the ADA and the Rehabilitation Act of 1973, a happenstance that may explain why we blurred the distinction between the laws in the first place. Then, as now, the Rehabilitation Act and the ADA serve the same goals, seeking to eliminate disability-based discrimination and other barriers to employment and public services for individuals with disabilities. With the passage of the ADA in 1990, Congress extended many of the Rehabilitation Act’s protections to entities that do not receive federal funding, and borrowed many of the requirements and standards from the earlier law in doing so. Relying on these similarities between the two laws (but neglecting to mention the differences between their causation standards), Maddox applied the Rehabilitation Act’s causation standard to both claims because “[t]he ADA parallels the protection of the Rehabilitation Act.” Id. at 846 n. 2. Consistent with Maddox, we used the “solely” standard in an ADA-only claim a year later, Monette v. Electronic Systems Corporation, 90 F.3d 1173, 1177-78 (6th Cir.1996), and before long that became the standard for relief under the ADA in this circuit, see, e.g., Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 363-64 (6th Cir.2007); Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598 (6th Cir.2002). The longer we have stood by this standard, the more out of touch it has become with the standards used by our sister circuits. At this point, no other circuit imports the “solely” test into the ADA. See Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir.1996); Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir.2000); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir.2003); Baird v. Rose, 192 F.3d 462, 468-69 (4th Cir.1999) (Title II case); Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir.2008); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 963 (7th Cir.2010); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995); Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1065 (9th Cir.2005); Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 878 (10th Cir.2004); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1074 (11th Cir.1996); Adeyemi v. Dist. of Columbia, 525 F.3d 1222, 1226 (D.C.Cir.2008). Our interpretation of the ADA not only is out of sync with the other circuits, but it also is wrong. Since Maddox, Congress has amended the Rehabilitation Act and the ADA several times, but the distinction between the causation standards used by the two laws persists. When Lewis filed this lawsuit in 2007, § 504 of the Rehabilitation Act provided: “No otherwise qualified individual with a disability ... shall, solely by reason of his or her disability, be ... subjected to discrimination.” 29 U.S.C. § 794(a) (emphasis added). At the time, Title I of the ADA provided: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a) (emphasis added). Nor is Title I of the ADA, which applies to private and public employers, the only section of the ADA that fails to use “solely.” Title II of the ADA, applicable to public services, says: Subject to the provisions of this sub-chapter, no qualified individual with a disability shall, by reason o/such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Id. § 12132 (emphasis added). The same is true of Title III (public accommodations), which applies to discrimination “on the basis of disability,” id. § 12182(a), and Title V (anti-retaliation), which bars discrimination “because” an individual opposed an employment practice, id. § 12203(a). Later amendments to the ADA do not change things. Under the ADA Amendments Act of 2008, Title I now reads: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). Even though the amended law does not cover this lawsuit, it too says nothing about a sole-cause standard of liability. At no point, then or now, has the ADA used the “solely” because of formulation found in the Rehabilitation Act. That leaves us with two laws with two distinct causation standards. One bars differential treatment “solely by reason of’ an individual’s disability; the other bars differential treatment “because of’ the individual’s disability. No matter the common history and shared goals of the two laws, they do not share the same text. Different words usually convey different meanings, and that is just the case here. A law establishing liability against employers who discriminate “because of’ an employee’s disability does not require the employee to show that the disability was the “sole” cause of the adverse employment action. Nor should it surprise anyone that Congress opted to give the ADA more regulatory bite. After seventeen years of experience with the Rehabilitation Act’s “solely” standard, Congress could well have decided that this limitation on employer liability should not be extended, particularly in a statute designed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Whatever the reason for the difference between the standards, we cannot ignore the difference. Courts must refrain from “applying] rules applicable under one statute to a different statute without careful and critical examination,” Gross, 557 U.S. at 174, 129 S.Ct. 2343, an examination that in this instance reveals distinct causation tests. Making that distinction all the more glaring is the reality that Congress has amended the two statutes many times over the years but has never seen fit to join the causation standards. See id. In contending that we should continue to add “solely” to the ADA causation standard, Humboldt relies on another provision of the ADA. “Except as otherwise provided in this chapter,” it says, “nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973....” 42 U.S.C. § 12201(a). Yet this provision does not merge the two causation standards. The first clause of the provision offers one reason. It contains a comparison caveat, warning the reader: “Except as otherwise provided in this chapter,” except in other words as provided in the text of the ADA — exactly the company’s problem here. The second clause provides another reason. It warns courts not to dilute the ADA standard of care relative to the Rehabilitation Act (not to construe it as “a lesser standard”). But respect for the ADA language- — reading it as “because of,” not as “solely because of’ — raises the employer’s standard of care in ADA cases. That is why it is the employee, not the employer, who asks us to respect the ADA language as it is. See Bragdon v. Abbott, 524 U.S. 624, 631-32, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (construing the no “lesser standard” language of the ADA to mean that no less protection be afforded by the ADA than by the Rehabilitation Act). Humboldt insists that another provision of the ADA brings the two causation standards together. That subsection instructs “agencies with enforcement authority” under the ADA to “develop procedures to ensure that administrative complaints filed under [the ADA] and under the Rehabilitation Act of 1973 are dealt with in a manner that avoids duplication of effort and prevents imposition of inconsistent or conflicting standards for the same requirements under [the ADA] and the Rehabilitation Act of 1973.” 42 U.S.C. § 12117(b). Here, too, a relevant caveat appears, as the provision speaks only of similar treatment “for the same requirements” under the two statutes, a prerequisite that remains unfulfilled. The provision at any rate addresses only the enforcement of the laws by executive agencies and the enforcement procedures those agencies should develop. It does not speak to the standards dictated by the statutes themselves. Enforcement provisions generally do not alter substantive standards of care. An appeal to legislative history does not alter this conclusion. A House Report on the ADA says that “[a]dministrative complaints filed under [the ADA] and the Rehabilitation Act should be dealt with in a manner to avoid duplication of efforts, and to prevent inconsistent or conflicting standards.” H.R.Rep. No. 101-485, pt. 3, at 49 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 472. Even if one measure of legislative purpose indicates a congressional desire to eliminate any “inconsistent ... standards” between the two statutes, that cannot trump a superior measure of legislative purpose — the text Congress enacted and the President signed into law, which refers to “inconsistent ... standards” with respect to “the same requirements.” The sole-cause standard in the end is a creature of the Rehabilitation Act, and that is where we should leave it. The standard does not apply to claims under the ADA. III. In addition to urging the district court not to use the sole-cause standard, Lewis asked the court to instruct the jury that the ADA imposes liability if the claimant’s disability “was a motivating factor in the adverse employment decision.” R.57 at 5 (emphasis added). The words “a motivating factor” appear nowhere in the ADA but appear in another statute: Title VII. For the same reasons we have no license to import “solely” from the Rehabilitation Act into the ADA, we have no license to import “a motivating factor” from Title VII into the ADA. Congress enacted Title VII as part of the Civil Rights Act of 1964. Pub.L. No. 88-352, § 701 et seq., 78 Stat. 241. As enacted, Title VII made it unlawful “for an employer ... to discriminate against any individual ... because of such individual’s race, color, religion, sex, or national origin.” Id. § 703 (emphasis added). In 1989, the Court considered how a because-of standard of causation worked in mixed-motives cases — cases where permissible and impermissible considerations played a role in the employer’s adverse employment action. Price Waterhouse v. Hopkins, 490 U.S. 228, 232, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). The decision splintered four ways. As later characterized by the Court, the lowest common denominator of Price Waterhouse was the creation of a burden-shifting framework to determine causation in mixed-motive cases: “[I]f a Title VII plaintiff shows that discrimination was a ‘motivating’ or a ‘substantial’ factor in the employer’s action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration.” Gross, 557 U.S. at 171, 129 S.Ct. 2343. Two years after Price Waterhouse, Congress passed the Civil Rights Act of 1991, which added two relevant provisions to Title VII. The first says: “Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Pub.L. No. 102-166, § 107, 105 Stat. 1071, 1075 (1991) (codified at 42 U.S.C. § 2000e-2(m)) (emphasis added). The second provides limited remedies — declaratory relief, injunctive relief and attorney’s fees, but not damages or reinstatement — if the claimant meets the motivating factor standard but the employer shows it would have taken the same adverse employment action anyway. Id. (codified at 42 U.S.C. § 2000e-5(g)(2)(B)). The two provisions “responded to Price Waterhouse ” by adding new standards for mixed-motives cases to the text of Title VII. Desert Palace, Inc. v. Costa, 539 U.S. 90, 94, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). There are two ways to look at this history. One is that Price Waterhouse established the meaning of “because of’ for Title VII and other statutes with comparable causation standards, with Congress essentially ratifying Price Waterhouse: Namely, a “because of’ causation standard permits a plaintiff to show that the prohibited characteristic was “a motivating factor” of the adverse employment action, shifting the burden of persuasion to the employer to show that the characteristic was not a “but-for” cause of the action because it would have taken the same action anyway for legitimate reasons. The other is that by amending Title VII to provide recovery under a “motivating factor” theory, Congress made this theory available to Title VII claimants but not to claimants under other civil rights statutes given that Congress did not extend this framework to the other statutes. Enter Gross v. FBL Financial Services, 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). It adopted the second theory and refused to expand the reach of Title VII’s “motivating factor” amendments to another civil rights statute that contained a “because of’ standard of causation. At stake in Gross was whether to apply Title VII’s “motivating factor” standard for proving employment discrimination, 42 U.S.C. §§ 2000e-2(m) and 2000e5(g)(2)(B), to disputes under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1). Although both statutes concern employment discrimination and both statutes share common goals, the Court reasoned that it would not casually “apply rules applicable under one statute to a different statute.” Gross, 557 U.S. at 174, 129 S.Ct. 2343. Unlike Title VII, Gross observed, the ADEA does not allow a plaintiff to prove discrimination merely by showing that her disability was a motivating factor behind her adverse employment action; the ADEA requires discrimination to be because of a disability, which means “but-for” causation. Id. at 177-78, 129 S.Ct. 2343. Making this difference in language particularly salient was the reality that Congress amended both statutes in 1991, but added the “motivating factor” language only to Title VII, not to the ADEA. Civil Rights Act of 1991, Pub.L. No. 102-166, § 107, 105 Stat. 1071; see also id. § 115; Gross, 557 U.S. at 174-75, 129 S.Ct. 2343. This rationale applies with equal force to the ADA. The ADEA prohibits discrimination “because of [an] individual’s age,” 29 U.S.C. § 623(a)(1), and does “not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor” in the adverse employment decision. Gross, 557 U.S. at 174, 129 S.Ct. 2343. So too with the ADA, which makes unlawful “discrimination] ... because of” a person’s disability, 42 U.S.C. § 12112(a), (b)(1), and which says nothing about allowing a plaintiff to prevail because a disability was a “motivating factor” in the adverse employment decision. Gross likewise reasoned that Congress “neglected to add [the motivating factor] provision to the ADEA when it amended Title VII ... even though it contemporaneously amended the ADEA in several ways.” 557 U.S. at 174, 129 S.Ct. 2343. The same is true of the ADA. Congress amended Title VII and the ADA through the Civil Rights Act of 1991, but added the “motivating factor” language only to Title VII. §§ 107, 109. “When Congress amends one statutory provision but not another,” Gross tells us, “it is presumed to have acted intentionally.” 557 U.S. at 174, 129 S.Ct. 2343. Gross resolves this case. No matter the shared goals and methods of two laws, it explains that we should not apply the substantive causation standards of one anti-discrimination statute to other anti-discrimination statutes when Congress uses distinct language to describe the two standards. Just as we erred by reading the “solely” language from the Rehabilitation Act into the ADA based on the shared purposes and histories of the two laws, swpra at 317, so we would err by reading the “motivating factor” language from Title VII into the ADA. Shared statutory purposes do not invariably lead to shared statutory texts, and in the end it is the text that matters. The one circuit to address the ADA/Title VII question after Gross has taken the same path. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961-62 (7th Cir.2010). Lewis insists she is not asking us to read anything into the text of the ADA that is not already there. A section of the ADA, she points out, cross-references Title VII: The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of [Title VII] shall be the powers, remedies, and procedures this subchapter provides to the [EEOC], to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment. 42 U.S.C. § 12117(a). But this cross-reference, which predates the 1991 amendments, accounts for the reality that the ADA does not have any enforcement provisions of its own. Id. That is why the provision has the label “Enforcement,” id., and why the Title VII cross-reference invoked by Lewis, 42 U.S.C. § 2000e-5, has the label “Enforcement provisions.” That also is why these enforcement mechanisms apply only to remedies for “discrimination on the basis of disability in violation of any provision of this chapter” (emphasis added), as opposed to violations of some other standard of care under another chapter. A disability claimant may not use the “powers, remedies, and procedures” of Title VII without establishing a violation of the ADA. Confirming the point, the companion enforcement provision of this section of the ADA, labeled “Coordination,” directs the agencies with enforcement authority under the ADA and the Rehabilitation Act to create “procedures” that “prevent[ ] imposition of inconsistent or conflicting standards for the same requirements.” 42 U.S.C. § 12117(b). Congress took the same path with the coordination provision of Title II of the ADA, which incorporates “[t]he remedies, procedures, and rights” of section 505 of the Rehabilitation Act. 42 U.S.C. § 12133. Just as the provisions of the ADA incorporating the Rehabilitation Act’s enforcement provisions do not bring that Act’s standard of care into the ADA, neither does the provision of the ADA incorporating Title VII’s enforcement provisions. There is another reason the incorporation of Title VII’s enforcement “powers, remedies, and procedures” into the ADA does not pull the “motivating factor” standard along with them. The part of Title VII that contains the “motivating factor” test — § 2000e-2 — is not included in the list of enforcement provisions identified in the ADA but appears (unsurprisingly) in a section of Title VII captioned “Unlawful employment practices.” That Congress did not incorporate § 2000e-2 into the ADA ought to give a court pause before doing so itself. Keep looking, Lewis tells us. Although the ADA’s cross-references do not mention § 2000e-2, they do mention § 2000e-5, which itself contains a cross-reference to the “motivating factor” provision when it provides a limited set of remedies for Title VII claimants who demonstrate motivating-factor discrimination. But this cross-cross-reference argument contains problems of its own. One is that § 2000e-5 does not direct judges to apply the substantive “motivating factor” standard from § 2000e-2(m); it permits them only to provide a remedy for plaintiffs who “prove[ ] a violation under section 2000e-2(m).” 42 U.S.C. § 2000e-5(g)(2)(B). No ADA plaintiffs will prevail under § 2000e-2(m), because that provision is a substantive standard that applies only to Title VII plaintiffs, not to ADA plaintiffs, as it speaks to “[impermissible consideration of race, color, religion, sex, or national origin” but says nothing about disability status. Nor does this reading make the ADA’s incorporation of § 2000e-5 meaningless. That subsection contains more than a dozen other provisions detailing procedures that remain applicable under the ADA. In incorporating a wide range of Title VII enforcement procedures and remedies into the ADA, it is hardly surprising that some of those provisions (in truth some parts of those provisions) apply by their terms only to Title VII eases. Still another problem with this argument is that § 2000e-5(g)(2)(B) cross-references all of § 2000e-2(m). It applies the “motivating factor” standard of causation to “race, color, religion, sex, or national origin” discrimination in employment. That means an ADA claimant could win only by showing discrimination based on another protected ground. Even with a lower standard of causation, that is no benefit to claimants seeking relief premised on disability-based discrimination. Surely the ADA does not impose liability based on other forms of discrimination or, worse, make other forms of discrimination a precondition for establishing disability-based discrimination. Legislative history does not alter this conclusion. Just as appeals to legislative history did not affect Gross’s decision to respect the differences between the text of the ADEA and the text of Title VII, see 557 U.S. at 186 n. 6, 129 S.Ct. 2343 (Stevens, J., dissenting), so they do not affect our decision. The 1990 Report from the House Committee on the Judiciary adds nothing to Lewis’s argument. In addressing the ADA’s incorporation of the “powers, remedies, and procedures” from five sections of Title VII, it said that “[a] bill is currently pending” that “would amend the powers, remedies and procedures of title VII.... Because of the cross-reference to title VII in [the ADA], any amendments to title VII that may be made in [that bill] ... would be fully applicable to the ADA.” H.R.Rep. No. 101-485(111), at 48, reprinted in 1990 U.S.C.C.A.N. 445 at 471. That bill became the Civil Rights Act of 1991. But any argument premised on this report merely reprises the cross-reference textual argument addressed above and suffers from the same problems identified above. More helpful to Lewis is this line from the House Committee on the Judiciary Report on the 1991 Civil Rights Act: “[M]ixed motive cases involving disability under the ADA should be interpreted consistent with the prohibition against all intentional discrimination in Section 5 of this Act.” H.R.Rep. No. 102-40, pt. 2, at 4, reprinted in 1991 U.S.C.C.A.N. 694, 697. Yet this sentence does not import the motivating-factor standard into the ADA for several reasons. One, this section of the report relates to Title VII, not the ADA. Courts are justifiably skeptical of legislative history that purports to amend an earlier-enacted statute and that relates to an amendment to a different law. See O’Gilvie v. United States, 519 U.S. 79, 89, 117 S.Ct. 452, 136 L.Ed.2d 454 (1996). Two, the legislation proposed by this report was not the legislation adopted by Congress. See John L. Flynn, Note, Mixed-Motive Causation Under the ADA: Linked Statutes, Fuzzy Thinking, and Clear Statements, 83 Geo. L.J.2009, 2048-49 (1995) (proposed bill would have allowed plaintiffs to receive punitive and compensatory damages if they met motivating-factor standard); compare Civil Rights Act of 1991, Pub.L. No. 102-166, § 107, 105 Stat. 1071, 1075-76, with H.R. Rep. 102-40, pt. 2, at 715. Three, the same report says (just a few sentences earlier) that the Title VII standards should apply to the ADA and the ADEA. It says: “A number of other laws banning discrimination, including the [ADA] and the [ADEA] are modeled after, and have been interpreted in a manner consistent with, Title VII. The Committee intends that these other laws modeled after Title VII be interpreted consistently in a manner consistent with Title VII as amended by this Act.” H.R. Rep. 102-40, at 3. If this consistency objective did not alter the outcome in Gross with respect to the ADEA, it is difficult to see why it should make a difference here. The best indication of legislative purpose, Gross reminds us, is the meaning of the legislative text Congress enacts, not the meaning of a House Report describing that purpose — and especially not a House Report describing the purpose of language Congress never adopted. That leaves one question: what standard should trial courts use in instructing juries in ADA cases? Gross points the way. The ADEA and the ADA bar discrimination “because of’ an employee’s age or disability, meaning that they prohibit discrimination that is a “ ‘but-for’ cause of the employer’s adverse decision.” 557 U.S. at 176, 129 S.Ct. 2343. The same standard applies to both laws. See Serwatka, 591 F.3d at 961-62. A brief rejoinder to our colleagues’ partial dissents is in order. First, every salient argument in favor of importing the “motivating factor” burden-shifting test from Title VII into the “because of’ test of the ADA was made in Gross. For the same reasons the Supreme Court opted not to construe the “because of’ language in the ADEA to incorporate this distinct statutory test from Title VII, we must do the same here. No court of appeals has reached a contrary conclusion on this point after Gross. Second, the same tools of statutory construction that require us to resist importing the “solely” language from the Rehabilitation Act into the ADA require us to resist importing the “motivating factor” burden-shifting framework of Title VII into the ADA. The two inquiries are exceedingly similar. Third, none of the dissents’ lower-court citations holds up. One of them, Hunter v. Valley View Local Schools, 579 F.3d 688 (6th Cir.2009), concerned the application of a “motivating factor” test to the Family Medical Leave Act, 29 U.S.C. § 2615(a)(2). There, however, a relevant administrative regulation, previously upheld by our court, required that outcome. Hunter, 579 F.3d at 692. The same is not remotely true here. Another one, Smith v. Xerox Corp., 602 F.3d 320, 329-30 (5th Cir.2010), concerned the use of a “motivating factor” test in a different provision of Title VII. There, no importation of a test from one statute into another was at issue, which is one reason the Fifth Circuit distinguished the Seventh Circuit’s decision in Serwatka, as opposed to disagreeing with it, as the dissent must do here, compare id. at 329 n. 28 with infra at 330-31 n. 5. A final case, Pinkerton v. Spellings, 529 F.3d 513 (5th Cir. 2008), concerned the issue at hand. There, however, the Fifth Circuit reviewed the issue before Gross, which is to say it reviewed the issue without the guidance provided by the Supreme Court and without considering the relevant issues joined here. IV. For these reasons, we reverse the judgment against Lewis and remand for a new trial.
CLAY, Circuit Judge, concurring in part and dissenting in part. The majority opinion fails to accomplish the original goal of this Court in choosing to hear this case en banc — which was to bring this Circuit into accord with the prevailing legal opinion on the issue addressed by the en banc Court. The majority continues to leave the Sixth Circuit opposed to the multiplicity of other circuits on the issue of the standard of causation required to prove discrimination under the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. §§ 12101-12213. It also fails to critically examine the relationship between Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, and the ADA in interpreting the ADA’s language. For these reasons, I respectfully dissent. An unanimous Sixth Circuit agrees that the “sole-cause” standard is inappropriate for determining causation under the ADA, but we are inexplicably divided by the task of determining which standard of causation to place in its stead. We look to the plain language of the ADA to discern whether it guides our decision. The ADA prohibits discrimination “against a qualified individual with a disability because of the disability.” 42 U.S.C. § 12112(a). Its causation language uses the phrase “because of,” which is not determinative as to whether a “but-for,” “motivating-factor,” or other standard applies. Instead of viewing the statute singly, we must consider the broader purposes of the statute and its relationship to other civil rights statutes to determine the congressional intent as to the meaning of this phrase. It is unnecessary to resort to a lengthy explanation of the legislative history of the ADA and other civil rights statutes or an extended statutory construction analysis, because the authority setting forth the application of Title VII to the ADA is clear and forthright. Simply put, the ADA was enacted to expand the protection against discrimination beyond that afforded by Title VII, in order to provide the same remedies offered to individuals discriminated against on the basis of race, color, religion, sex, and national origin to those discriminated against on the basis of their disabilities. See 42 U.S.C. § 12101. The ADA explicitly cross-references and adopts Title VU’s enforcement section, including “powers, remedies, and procedures.” 42 U.S.C. § 12117(a) (“The powers, remedies, and procedures set forth in sections 2000e^l, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures [of] this subchapter.... ”). Title VII’s remedies thus apply to the ADA with equal force and validity; this includes the changing interpretation of Title VII and any amendments made thereto. As noted by the House of Representatives Report on the ADA, “[b]eeause of the cross-reference to title VII” in the ADA, “any amendment to Title VII that may be made” with respect to Title VII’s powers, remedies, and procedures “would be fully applicable to the ADA.” H.R. Rep. No. 101 — 485, pt. 3, at 48 (1990), 1990 U.S.C.C.A.N. 445 at 471. In other words, “[b]y retaining the cross-reference to Title VII, the Committee’s intent is that the remedies of Title VII, currently and as amended in the future, will be applicable to persons with disabilities.” Id. “Thus, if the powers, remedies, and procedures change in title VII of the 1964 Act, they will change identically under the ADA for persons with disabilities.” Id. The fact that Title VII employs the motivating-factor standard of causation informs us that the meaning of the ADA’s “because of’ language should correspondingly be interpreted to invoke the motivating-factor standard. 42 U.S.C. § 2000e-2(m). The shortcomings of the “but-for” standard employed by the majority become clear when one considers, in this context, how the “but-for” concept is narrowly circumscribed by its own definition. “But-for cause,” also referred to as “actual cause” or “cause in fact,” means “[t]he cause without which the event could not have occurred.” Black’s Law Dictionary 212 (7th ed.1999). It is “[t]he doctrine that causation exists only when the result would not have occurred without the [relevant] conduct.” Id. at 192-93. In other words, but-for cause means that the relevant factor was necessary for the consummation of an event. As the Supreme Court has described it, “[b]ut-for causation is a hypothetical construct.” Price Waterhouse v. Hopkins, 490 U.S. 228, 240, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). “In determining whether a particular factor was a but-for cause of a given event, we begin by assuming that that factor was present at the time of the event, and then ask whether, even if that factor had been absent, the event nevertheless would have transpired in the same way.” Id. A motivating-factor standard, which is in accord with the requirements of the ADA, requires a plaintiff to show that her protected trait, disability in this case, was one of the considerations that the defendant took into account when taking action against the plaintiff. See id. at 250, 109 S.Ct. 1775. A but-for standard requires proof that even if that consideration was absent, the adverse action “nevertheless would have transpired in the same way.” Id. at 240, 109 S.Ct. 1775 (but distinguishing the but-for standard from a sole-cause standard). While the but-for standard may lessen the burden on plaintiffs seeking to prove disability-based discrimination when compared with the sole-cause standard, it barely does so. Thus, a but-for standard suggests the availability of a much more limited basis for recovery by a plaintiff than would be indicated by the motivating-factor standard, which is more compatible with the remedial goals and objectives of Title VII. See id. at 240-42, 109 S.Ct. 1775. For example, imagine that a disabled plaintiff seeks remedy under the ADA following the termination of her employment, which she believes was on the basis of her disability. The plaintiff admits evidence that the employer wished to terminate her because the employer believed her disability was troublesome to its business; but the employer admits other evidence that the plaintiffs work was less than exemplary. Under a motivating-factor standard, the plaintiff could easily satisfy her causation burden by presenting evidence that her disability provided one of the reasons for her termination. However, under the but-for standard, the plaintiff is obligated to prove that without the disability, her allegedly poor performance would not have been enough to motivate her employer to terminate her. In practice, a plaintiff will rarely discover objective evidence of her employer’s state of mind or internal motivations that would satisfy this extremely heavy burden. The plaintiff must instead resort to conjectural inquiry of the employer’s thoughts and purposes, which the employer can simply and succinctly reject by offering a myriad of other subjective reasons for her termination. As the Supreme Court stated in Price Waterhouse, it is contrary to “our common sense” that “Congress meant to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges.” Id. at 241, 109 S.Ct. 1775; see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 191, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (Breyer, J., dissenting) (“[T]o apply ‘but-for’ causation is to engage in a hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different. The answer to this hypothetical inquiry will often be far from obvious, and, since the employee likely knows less than does the employer about what the employer was thinking at the time, the employer will often be in a stronger position than the employee to provide the answer.”). When taking into account the purpose of the ADA to ameliorate discrimination against people with disabilities and its relationship to other civil rights statutes, it becomes clear that the less burdensome motivating-factor standard of causation should apply. The majority relies on the Supreme Court’s recent decision in Gross, which held that claims under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, are governed by the but-for standard and not the motivating-factor standard, as conclusive support for the proposition that the but-for standard must apply to ADA claims as well. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961-62 (7th Cir.2010) (applying the but-for standard to the ADA after Gross). But see Bolmer v. Oliveira, 594 F.3d 134, 148—49 (2d Cir.2010) (declining to decide whether Gross also applies in the ADA context); Crouch v. J.C. Penney Corp., Inc., 337 Fed.Appx. 399, 402 n. 1 (5th Cir.2009) (per curiam) (same). However, Gross is inapplicable to our analysis of the appropriate standard of causation under the ADA because Gross examined the issue in the context of the ADEA, which involves discrimination under a different analytical rubric. See Hunter v. Valley View Local Sch., 579 F.3d 688, 691 (6th Cir.2009) (analyzing the applicability of Gross to claims under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601, and concluding that the FMLA remains governed by the motivating-factor standard of Title VII). As the Gross Court itself notes, “[wjhen conducting statutory interpretation, we ‘must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.’ ” 557 U.S. at 174, 129 S.Ct. 2343 (citing Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008)). Because the ADA is explicitly tied to Title VII’s remedies provisions — unlike the ADEA — a careful examination of the two statutes makes clear that a plaintiff alleging discrimination under the ADA must only prove that the discrimination was a motivating factor for the adverse action. Significantly, a majority of our sister circuits have embraced the motivating-factor standard in reviewing ADA claims. See Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir.2008) (per curiam) (“Under a plain reading of the statute, and in accord with the position of other circuits, ... [t]he proper causation standard under the ADA is a ‘motivating factor’ test.”); Head v. Glacier Nw., Inc., 413 F.3d 1053, 1064-65 (9th Cir.2005) (deciding that the ADA’s phrase “ ‘because of conveys the idea of a factor that made a difference in the outcome” (citation omitted)); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir.2003) (invoking a pretext and mixed-motives theory, which requires proof that disability was a “substantial motivating factor” in the adverse action); Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir.2000) (holding that the motivating factor standard “is consistent with the broad purpose of the ADA”); Baird v. Rose, 192 F.3d 462, 470 (4th Cir.1999); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th Cir.1996) (holding that “motivating factor” and “but for” constitute the same standard); Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir.1995). The Sixth Circuit should join this consensus. Moreover, as we were recently reminded with Congress’ amendments to Title VII, it is important that courts not pare down the rights afforded to individuals by the legislature or act as lawmakers. Indeed, Congress glaringly proclaimed in amending Title VII with the Civil Rights Act of 1991 that its statutory amendments had two purposes: “The first is to respond to recent Supreme Court decisions by restoring the civil rights protections that were dramatically limited by those decisions. The second is to strengthen existing protections and remedies available under federal civil rights laws.... ” H.R.Rep. No. 102-40, pt. 2, 1 (1991), 1991 U.S.C.C.A.N. 694 at 694. Justice Stevens gave recognition to this fact in Gross by reiterating that, “[a]s part of its response to ‘a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws,’ ... Congress eliminated the affirmative defense to liability that Price Waterhouse had furnished employers and provided instead that an employer’s same-decision showing would limit only a plaintiffs remedies.” 557 U.S. at 185, 129 S.Ct. 2343 (Stevens, J., dissenting) (citing H.R.Rep. No. 102-40, pt. 2, 2, 1991 U.S.C.C.A.N. 694 at 694-95). Employing a but-for causation standard for ADA claims imposes a burden upon individuals in seeking to vindicate disability-based discrimination that is greater than the burden intended by Congress. Because neither Congress — nor the Supreme Court — has expressly diminished individuals’ rights under the ADA, it is inappropriate for our Circuit to do so without such a mandate. See, e.g., Borgmann, Caitlin E., Rethinking Judicial Deference to Legislative Fact-Finding, 84 Ind. L.J. 1, 38 (2009) (“[W]here Congress or a state legislature seeks to create or protect, rather than curtail, individual rights, there is less compelling justification for the courts to intercede.”). Although we have made one stride forward in eliminating the more burdensome sole-cause standard, the majority has taken us a step back in continuing to place an additional indefensible onus on plaintiffs in proving their ADA claims that was not prescribed by Congress. I decline to join the majority opinion due to its failure to bring our Circuit into consensus with the generally-agreed upon correct standard of adjudicating discrimination claims in the ADA context. The majority’s failure to properly acknowledge Congress’ intention that the ADA be interpreted in accordance with the motivating-factor standard employed in the Title VII context leaves us with the but-for standard, which is only marginally more efficacious than the sole cause standard that has now been entirely repudiated by this Circuit. . Citations to the ADA correspond to the pre-2008 statute.
JANE B. STRANCH, Circuit Judge, concurring in part and dissenting in part. I concur with the majority opinion’s holding that the protection against discrimination provided by the Americans with Disabilities Act does not hinge upon establishing that disability was the “sole” cause of an adverse employment action. And I agree that the error this decision corrects resulted from our prior failure to respect the words of the ADA and the rules of statutory construction that must govern our analysis. For the same reasons — failure to respect the words of the statute as a whole and failure to honor the tenets of statutory construction — I respectfully dissent from the majority’s determination that we now impose a “but for” standard upon those seeking protection under the ADA from discrimination “because of’ disability. Applying the rules we admittedly failed to apply before, I conclude that the plain language of the ADA permits a plaintiff to recover when the plaintiffs disability was a motivating factor in the adverse employment decision. In analyzing a statute, both language and context matter. To understand the ADA, particularly the “because of’ language in section 102(a), the year in which the ADA was enacted is the key in two respects. First, during 1990, Congress was working on both the ADA and the Civil Rights Act, the latter including amendments to Title VII. This presented a practical problem for implementing Congressional intent to establish the same powers, remedies, and procedures in both the ADA and Title VII: the ADA was enacted in 1990 but not soon enough for its provisions to be specified in the bills that ultimately became the Civil Rights Act; and, the Civil Rights Act was not completed until 1991, too late to be specified in the ADA. Due to this timing issue, Congress chose to effectuate its goal by linking the two statutes, explicitly incorporating Title VII provisions into the ADA by reference. This served two purposes, it linked the statutes and insured that they would proceed in tandem across time. The second reason the ADA’s year of enactment is key is tied to the instruction that, when analyzing statutory language, we must be mindful of the context in which it was crafted. It is a settled canon of statutory construction that courts will presume Congress was well aware of the prevailing law when it enacted a statute. United States v. Kassouf, 144 F.3d 952, 957 (6th Cir.1998); see also North Star Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995) (“[I]t is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [our] precedents ... and that it expect[s] its enactment[s] to be interpreted in conformity with them.”); White v. Burlington N. & Santa Fe R. Co., 364 F.3d 789, 818 (6th Cir.2004) (Sutton, J., concurring in part and dissenting in part) (“[I]t is appropriate to consider other indicators of statutory meaning, analogous Supreme Court precedents and relevant state laws predating the legislation.”). Thus, we are tasked with discerning what Congress intended the phrase “because of’ an employee’s disability to mean when it enacted the ADA. In 1989, the Supreme Court decided Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), determining what the statutory language “because of’ meant in Title VII. The Court held that where a plaintiff proved gender played “a motivating part” in an employment decision, along with other legitimate factors, the plaintiff established that the decision was “because of’ sex in violation of Title VII. Id. at 250, 109 S.Ct. 1775. This method of proof became known as the “mixed-motive” analysis, see id. at 246-47, 109 S.Ct. 1775, or the “motivating factor” standard. Thus, when Congress enacted the ADA shortly thereafter and chose both to include the “because of’ language and to cross-reference Title VII, it knew that using the Title VII language in an analogous and closely related employment anti-discrimination statute ereat-ed a “motivating factor” standard. See Cannon v. Univ. of Chicago, 441 U.S. 677, 698-99, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (“[E]valuation of congressional action must take into account its contemporary legal context.”); Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d 310, 315 (6th Cir.1998) (“To understand the intent and purpose behind the legislation in question, it is important to consider the political and legislative context in which it was enacted.”). The majority ignores these traditional rules of construction and instead declares this ADA case controlled by the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), an Age Discrimination in Employment Act (ADEA) case that applied a “but for” causation standard and not a “motivating factor” standard. The majority errs. The statutory language and enactment context of the ADA makes inapposite an analysis of the ADEA. More about the significance of those differences later. For now, the crucial issue is that the majority ignores the rules of statutory construction that require evaluation of such differences and instead posits an all-or-nothing result. The majority presumes that there are only two ways to interpret Price Waterhouse and the subsequent legal history, including passage of the Civil Rights Act of 1991: either that (1) the language “because of’ in a statute always means “a motivating factor” or (2) it means so only for Title VII and never for any other statute. (Majority Op. at 317-18). Having created this false dichotomy, the majority then presumes that in Gross the Supreme Court adopted the “second theory” — that Congress intended to provide a “motivating factor” standard only to Title VII claimants “but not to claimants under other civil rights statutes.” (Majority Op. at 318). This blanket premise, which infects the majority’s entire analysis, finds validation neither in the rules of statutory construction nor in the case precedent of either the Supreme Court or the Sixth Circuit. As to the Supreme Court, Gross simply cannot support the weight of the majority’s conclusion. Gross itself teaches that statutory interpretation is an individualized inquiry. Its very language belies blanket applicability as it clearly undertakes an analysis only of the ADEA: “Our inquiry therefore must focus on the text of the ADEA[J” 557 U.S. at 175, 129 S.Ct. 2343. Further, it reminds us that we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination”— a rule the majority transgresses here. Id at 174, 129 S.Ct. 2343. In Hunter v. Valley View Local Schools, 579 F.3d 688, 691 (6th Cir.2009), we took that instruction to heart and refused to presume that Gross employed a broad stroke wiping out the applicability of Title VII standards to other civil rights statutes. We examined the issue and concluded, “Gross thus requires us to revisit the propriety of applying Title VII precedent to the FMLA by deciding whether the FMLA, like Title VII, authorizes claims based on an adverse employment action motivated by both [prohibited factors] and also other, permissible factors.” Id. (holding that Price Waterhouse’s “motivating factor” standard applies to FMLA claims). In Smith v. Xerox Corp., 602 F.3d 320 (5th Cir.2010), the Fifth Circuit gave a similar explication of Gross — in response to the same claim of Gross’s controlling authority. — when it sought to determine whether the “motivating factor” standard from Title VII’s discrimination provision, 42 U.S.C. § 2000e-2, should apply to Title VII’s retaliation provision, 42 U.S.C. § 2000e-3, which did not contain and was never amended to include “motivating factor” language. The Fifth Circuit noted that the textual differences between the ADEA and Title VII guided the Supreme Court’s decision in Gross, and that a “simplified application of Gross” in the Title VII retaliation context, as advocated by Xerox, “would be contrary to Gross’s admonition against intermingling interpretations of the two statutory schemes.” Id. at 328-29 (holding that Price Waterhouse’s “motivating factor” standard applies to Title VII retaliation claims). The Fifth Circuit reached the conclusion applicable here, that “the Price Waterhouse holding remains our guiding light.” Id. at 330. The majority finds Smith inapposite because it “concerned the use of a ‘motivating factor’ test in a different provision of Title VI” and concludes the Fifth Circuit distinguished Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir.2010) on this basis. (Majority Op. at 321). Smith cannot be dismissed so easily. As the Fifth Circuit itself recognized, the Gross reasoning could be applied to Title VII’s retaliation provision, which had not been amended in 1991 to include a “motivating factor” standard when its discrimination counterpart was so amended. See Smith, 602 F.3d at 328. However, the Smith court rejected “such a simplified application of Gross,” id. at 328, and declined to follow the “broad view of Gross ” adopted by the Seventh Circuit, id. at 329 n. 28. It was this fundamental disagreement regarding Gross’s appropriate scope that led to the Fifth Circuit’s departure from the reasoning in Serwatka, not the title of the statute at issue. Finally, the Fifth Circuit also distinguished Gross as a case on the ADEA, a statute not before that court, as it is not before us. Id. at 329. Thus, this Court’s analysis in Hunter and the Fifth Circuit’s analysis in Smith wholly undercut the majority’s broad conclusion that Gross adopted a theory which grants the “motivating factor” standard to Title VII discrimination claimants but automatically denies it “to claimants under other civil rights statutes.” (Majority Op. at 318). Because the tenets of statutory construction and case precedent eschew the majority’s presumptions about Gross, we must complete the required task — a careful examination of the ADA itself. We turn to the key wording of the ADA, the prohibition on discrimination “because of’ disability. 42 U.S.C. § 12112(a). We have already explained that in 1989 Price Wa-terhouse defined these Title VII words to entail a “motivating factor” standard that Congress subsequently codified into Title VII, through the Civil Rights Act of 1991. 42 U.S.C. § 2000(e)-2(m). The ADA was passed in 1990, between those events, containing explicit cross-references to Title VU’s powers, remedies, and procedures. Ignoring that context and declaring blanket applicability of Gross, the majority assumes that the Supreme Court’s ADEA statutory analysis simply transfers to the ADA and disposes of this case through the holding: “We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA.” 557 U.S. at 174, 129 S.Ct. 2343. The majority’s analysis thus hinges on the Title VII amendments in the Civil Rights Act of 1991. However, as the Supreme Court also noted, we must view each statute in its own context. And here context is very important. The ADEA was enacted in 1967, decades before the Price Wa-terhouse holding and without any explicit cross-references to the major substantive provisions of Title VII. The ADA, on the other hand, was conceived in 1990 by a Congress that was well aware of Price Waterhouse and born into a legal context in which “because of’ meant that a “motivating factor” standard applied. And Congress assured that application by expressly including cross-references to Title VII in the initial ADA language. When the ADA was enacted in 1990, to implement its intended parallel between the statutes, Congress explicitly linked the ADA to Title VII. Section 107(a) of the ADA provides: The powers, remedies, and procedures set forth in section 705, 706, 707, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9) shall be the powers, remedies, and procedures this title provides to ... any person alleging discrimination on the basis of disability in violation of any provision of this Act.... 42 U.S.C. § 12117(a). This express reference to Title VII emphasizes Congress’s intention that the two statutes be interpreted the same way. Relying on the ADEA analysis, the majority makes much of Congress’s decision not to place the words “motivating factor” directly into the ADA in the 1991 amendments. But, in 1990, Congress had already considered and resolved this proposition for the ADA when it chose, instead, to link the two statutes so that they would always have the same standard: An amendment was offered ... that would have removed the cross-reference to Title VII and would have substituted the actual words of the cross-referenced sections. This amendment was an attempt to freeze the current Title VII remedies (i.e., equitable relief, including injunctions and back pay) in the ADA. This amendment was rejected as antithetical to the purpose of the ADA — to provide civil rights protections for persons with disabilities that are parallel to those available to minorities and women. By retaining the cross-reference to Title VII, the Committee’s intent is that the remedies of Title VII, currently and as amended in the future, will be applicable to persons with disabilities. H. Rep. No. 101-485(111) at 48 (1990), reprinted in 1990 U.S.C.C.A.N. 445 at 471 (House Report for the ADA). The date of passage, the different legal context, and the intentionally different language of the ADA renders Gross’s analysis of the ADEA simply inapplicable to the ADA. Though the textual analysis above and the legal context of the ADA’s passage should be dispositive, the Civil Rights Act amendments do have a role in this case, albeit not the one the majority presses. First, the amendments reinforce the availability of mixed-motive claims under Title VII in the wake of the Supreme Court’s Price Waterhouse decision. See 42 U.S.C. §§ 2000e-5(g)(2)(B), 2000e-2(m) (both expressly referencing mixed-motive or motivating-factor claims). More importantly, Congress used those amendments to codify the “motivating factor” standard into the ADA through the Title VII provisions that it had previously incorporated into the ADA. See 42 U.S.C. § 12117(a) (incorporating enumerated Title VII sections). Those incorporated sections include the “Enforcement Provisions” set out in section 706(g)(2)(B) of Title VII, which directly reference the “motivating factor” standard. 42 U.S.C. § 2000e-5(g)(2)(B). Thus, the Civil Rights Act implemented the prior Congressional decision by inserting in Title VII, and thereby including in the ADA, the “motivating factor” language. Because the ADA as enacted by Congress made available in ADA actions for employment discrimination the very same remedies available in Title VII actions, passage of the remedial amendments to Title VII had the effect of amending the ADA as well. Rights of Americans with Disabilities (Americans with Disabilities Act of 1990, ns amended, through 1991, 42 U.S.C. §§ 12101-12213), 5-22A Civil Rights Actions P 22A.01 (Matthew Bender & Co., Inc.2011). The majority ignores this express linkage, arguing that “incorporation of Title VII’s enforcement ‘powers, remedies, and procedures’ into the ADA does not pull the ‘motivating factor’ standard along with them.” (Majority Op. at 319). But there is no need to “pull” the “motivating factor” standard from Title VII into the ADA because Congress had already chosen to use the words expressing that standard and had already tied the ADA to Title VII in 1990. Simply put, the ADA is not the ADEA and the majority is not free to treat the word