which was consistent with title seven is sixty four dollars civil rights act and age discrimination in employment act however into the sales and eight congress changed that language from because of two on the base it's those to do worse the standard of the motivating factor wrote specific language to accomplish that result impermeable considerations because in your view even under under the a b a you're entitled to a motivating factor instruction which doesn't come  with the same decision partial the sense is that your argument is distancing yourself from rather than relying on the corporation of title seven the defense is entitled to an instruction that we would have made the decision anyway and if the jury says yes it was a motivating factor but yes they would have made the decision anyway the point of it still entitle that they would have been fired they would have at that adverse action anyway and in my case my client absolutely refused to even consider that as a possibility so i i'm not sure that i heard you correctly but i thought you just said that that your brecht what i just described as that as the title seven the motivating factor package which is yet going to prove motivating factor defense has an opportunity  he would have made the same decision even not considering that factor as you read justly articulate i thought you said that the plaintiff would have to admit that they would have made the same decision which is not that's not what whether or not the company would be the employee would have the opportunity to prove that they would have fired or taken the ad protection anyway i think has to be an open option for the employer they've got to be to demonstrate that it would have happened anyway i think the key for my point is that motivating factor is discrimination title seven  basis on which you say that but that the evidence can be understood as supporting either everything that the employer said was a lie or something something more like it was just a fact i'm just as a factual matter i'm not sure what you would have to believe happened that would map on to the motivating factor approach factual material that you would point to to explain how a jury could have found that even not totally discrediting the principle as is your primary argument that they might nonetheless have found that disability bias with the motivating factor well yes i mean they have the dispute about whether or not he argued raised his voice in a meeting both the principle to one thing and said different but in that particular case it was george and johnson who accompanied him to regular meetings and swore that he was not the kind of person who would gra clearly never did when she was with him at all the meeting that was a bet that there was a question about his lesson plan again the principal and mr houghton disagreed directly but he had  argument that you just heard from counsel corroborate that this was a factual dispute based on whether or not principle regis was telling the truth never argument so the district court correctly found that even if the motivating factor was a viable theory under the a b a motivating factor instruction had no basis in the record here how can he wasn't entitled to that instruction that discrimination need only be a motivating factor when his case was based exclusively on a single factor i also think that shot that's a little bit confusing because wouldn't it be permissible in depending on the evidence for a plaintiff to say you know i don't think that the reason that i was fired was because of my bad conduct at work but even if you think that might have been part of the reason there was definitely discrimination like this that's been seen like they're takes yes but that too is a strategic choice and i think that the district court correctly found based on having viewed all the evidence and listened to the testimony that this case was presented as the single factor case but even if she was wrong i think as your questions were designed to test this effort of the issue other than totally conclusory this statement that he would have prevailed or had a better chance of prevailing if a motivating factor instruction had been given that has our brief pointed out to every circuit court to have considered the issue hasn't turbot it title wants prohibition on discriminating against the qualified from the course of two on the basis of has some court importance here the supreme court has repeatedly indicated that the phrase on the basis  comcast the national association of african american owned media in focus cases you know the court indicates that on the basis of syndicates but for the language inserting the motivating factor standard into the status based defenses in title seven was drawn at the same time that they d n a was amended but that address my wrong about the chronology well i'm not sure about that you're wrong about the chronology but i do believe that both several of the cases and i believe basis of i think you know it does not signal that the motivating factor that it intended to to employ a motivating station standard but the emphasis is to emphasize that the standard for determining whether impairment constitutes disability although it's like  does that you actually have to be a civil where on the basis of is you could be treated as thought to be disabled right i think you're right it was to lower the emphasis on the preliminary question of whether a cut it but i'm just trying to get an accurate sense of what it was doing and i thought that it had to do with if someone's perceived to be disabled you know if they're not that would be disability commission violating or you know i think that's part of i but i think part of the amendment if i understand it was to broaden the scope of coverage that that was in reaction that was a reaction to several cases had made the bar to qualify as a person with a disability as the functions of a da more rigorous to basically lower