The Honorable Joseph S. Van Bokkelen, of the Northern 

District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4010

KATHLEEN A. SERWATKA,

Plaintiff-Appellee,

v.

ROCKWELL AUTOMATION, INC.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 06 C 1012—Lynn Adelman, Judge.

ARGUED MAY 14, 2009—DECIDED JANUARY 15, 2010

Before ROVNER and EVANS, Circuit Judges, and

VAN BOKKELEN, District Judge. 



ROVNER, Circuit Judge. Kathleen A. Serwatka filed suit

against her former employer, Rockwell Automation, Inc.

(“Rockwell”), under the Americans with Disabilities Act,

42 U.S.C. §§ 12101, et seq. (the “ADA”), alleging that
2 No. 08-4010

Rockwell discharged her because it regarded her as being

disabled, despite her ability to perform the essential

functions of her job. A jury agreed with Serwatka, answering “Yes” to the following question on the special

verdict form: “Did defendant terminate plaintiff due to

its perception that she was substantially limited in her

ability to walk or stand?” R. 115 at 1. But the jury also

answered “Yes” to this follow-up question: “Would

defendant have discharged plaintiff if it did not believe

she was substantially limited in her ability to walk

or stand, but everything else remained the same?” R. 115

at 1-2.

The district court treated the jury’s answers to these

two questions as a mixed-motive finding, that is, a

finding that Rockwell’s decision to fire Serwatka was

the product of both lawful and unlawful motives. Serwatka

v. Rockwell Automation, Inc., 583 F. Supp. 2d 994, 996 (E.D.

Wis. 2008). See generally Price Waterhouse v. Hopkins, 490

U.S. 228, 109 S. Ct. 1775 (1989). On appeal, Rockwell has

taken issue with this characterization of the jury’s

special verdict, but we have no reason to question the

district court’s understanding of what the jury found, and,

in any event, Rockwell did not make this contention

below in its post-trial brief opposing Serwatka’s request

for relief based on the jury’s verdict. R. 122; see, e.g., Int’l

Prod. Specialists, Inc. v. Schwing Am., Inc., 580 F.3d 587, 598

(7th Cir. 2009) (arguments not made to the district court

are waived). The more pertinent issue is whether the

jury’s mixed-motive finding entitles Serwatka to judgment in her favor and to the relief that the district court

awarded her. Rockwell contends that it does not, given the
No. 08-4010 3

provisions of the ADA and the Supreme Court’s recent

decision in Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343

(2009). We agree. Our analysis of this issue begins with

Price Waterhouse.

In Price Waterhouse, a plurality of the Supreme Court

recognized that an employer may violate Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. (“Title

VII”), when it relies upon one of the grounds that

the statute forbids employers from considering in employment decisions (i.e., race, color, religion, sex, or

national origin), even if the proscribed criterion was not

the sole reason for the employer’s decision. “Title VII [was]

meant to condemn even those decisions based on a

mixture of legitimate and illegitimate considerations.” 490

U.S. at 241, 109 S. Ct. at 1785. But in recognition of the

balance that Congress struck between eliminating invidious employment discrimination and preserving an employer’s prerogative to employ whomever it wishes, the

Court’s majority also held that an employer would bear

no liability for a mixed-motive employment decision if it

would have made the same decision absent the illegal

motive. Id. at 242, 244-45, 258, 109 S. Ct. at 1786, 1787-88,

1795 (plurality); id. at 261 n.*, 109 S. Ct. at 1796 n* (White,

J., concurring in the judgment); id. at 261, 279, 109 S. Ct. at

1796, 1806 (O’Connor, J., concurring in the judgment).

The Court assigned the burden of persuasion on that

point to the employer. Thus, once a plaintiff has proven

that a proscribed criterion played a motivating role in

the employer’s adverse decision, the employer assumes

the burden of proving by a preponderance of the

evidence that it would have made the same decision
4 No. 08-4010

even if the illegal factor had played no role in its

decisionmaking. See id. at 258, 109 S. Ct. at 1795 (plurality);

id. at 259-69, 109 S. Ct. at 1795 (White, J., concurring in the

judgment); id. at 276, 109 S. Ct. at 1804 (O’Connor, J.,

concurring in the judgment).

Although Price Waterhouse dealt solely with Title VII,

lower courts, including our own, have applied its principles to cases brought under other anti-discrimination

statutes. See McNutt v. Bd. of Trustees of U. of Ill., 141 F.3d

706, 707 (7th Cir. 1998). The ADA is of course among

those statutes. See Parker v. Columbia Pictures Indus., 204

F.3d 326, 336-37 (2d Cir. 2000) (Sotomayor, J.) (coll. ADA

cases applying Price Waterhouse methodology, including

Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34 (7th

Cir. 1999)); but see Hedrick v. W. Reserve Case Sys., 355

F.3d 444, 457 (6th Cir. 2004) (plaintiff must show that his

or her disability was the sole reason for the adverse

employment action).

When Congress enacted the Civil Rights Act of 1991, it

took two actions with respect to the then-recent Price

Waterhouse decision that have particular relevance here.

Section 107(a) of the Act added a provision to Title VII

which expressly deemed unlawful any employment

practice motivated by a person’s race, color, religion, sex,

or national origin, “even though other factors also motivated the practice,” thereby codifying that aspect of Price

Waterhouse. P.L. 102-166, 105 Stat. 1071, 1075, codified at

42 U.S.C. § 2000e-2(m). But whereas the Supreme

Court’s holding relieved an employer of all liability for

a mixed-motive decision once it convinced the factfinder
No. 08-4010 5

that it would have taken the same adverse employment

action in the absence of the illegal motive, Congress

amended Title VII to authorize limited relief to the

plaintiff in such cases. Specifically, section 107(b) of the

Act added a second provision to the statute stating that

in mixed-motive cases, when an employer has shown

that it would have taken the same action in the absence

of the illegal motive, a court may award the plaintiff

both declaratory and injunctive relief, along with her

attorney’s fees and costs, but may not award damages

nor order the plaintiff hired, reinstated to her former

position, or promoted. 105 Stat. at 1075-76, codified at 42

U.S.C. § 2000e-5(g)(2)(B).

The enforcement provision of the ADA incorporates

certain of the remedies provided for employment discrimination in Title VII:

The powers, remedies, and procedures set forth in

sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9

shall be the powers, remedies, and procedures this

subchapter provides to . . . any person alleging discrimination on the basis of disability in violation of any

provision of this chapter . . . concerning employment.

42 U.S.C. § 12117. Among the provisions of Title VII crossreferenced is section 2000e-5, which, in relevant part and as

we have just noted, authorizes a court to award certain

types of relief to a plaintiff based on a mixed-motive

finding.

In light of the jury’s mixed-motive finding here, and

section 12117’s cross-reference to the remedies authorized

by Title VII, the district court concluded that Serwatka
6 No. 08-4010

was entitled to no damages, but was entitled to the

other sorts of relief authorized by section 2000e5(g)(2)(B)(i). 583 F. Supp. 2d 994. The court granted

Serwatka declaratory relief in its judgment order, which

noted that her discharge had been motivated in part by

Rockwell’s perception that she was disabled. Id. at 996-97,

1000; R. 134. It also granted her injunctive relief in the

form of a directive that Rockwell place a copy of the

judgment in Serwatka’s personnel file. 583 F. Supp. 2d at

996-97, 1000. The court found further that Serwatka was

entitled to an award of attorney’s fees and costs. It reasoned that her suit had “some merit,” in view of the

jury’s mixed-motive finding, and had “served the public

purpose of discouraging discrimination in employment.”

583 F. Supp. 2d at 998. “Plaintiff also obtained some,

although minimal, non-monetary relief.” Id. But given

the modest nature of the relief Serwatka had won and

the lack of evidence that Rockwell bore any “unwarranted animus” toward her or had engaged in a pattern

of disability discrimination, the court found that she

was not entitled to fees for all of the time her attorneys

had spent litigating the case nor to all of her costs. Id.

After determining that Serwatka had reasonably

incurred fees and costs in the total amount of $153,290.54,

id. at 999, the court reduced that total by eighty percent

and awarded her fees and costs in the amount of

$30,658.11, id. at 1000.

Rockwell’s appeal challenges both the declaratory and

injunctive relief that the district court granted to

Serwatka as well as the award of fees and costs. Despite

the jury’s finding that Rockwell’s perception of Serwatka’s
No. 08-4010 7

limitations played some role in its decision to discharge

her, the company contends that the additional finding

that it would have terminated Serwatka regardless of that

perception compels the entry of judgment in its favor

rather than Serwatka’s. Rockwell argues that the mixedmotive analysis that the district court relied on as a basis

for its decision to grant Serwatka limited relief is inapplicable to the ADA. It raises other arguments as well in

its challenge to the forms of relief that the court awarded,

but in view of the Supreme Court’s opinion in Gross,

decided shortly after we heard oral argument in this case,

the applicability of the mixed-motive framework is the

only argument that we need to address.

Gross held that because the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), lacks

the language found in Title VII expressly recognizing

mixed-motive claims, such claims are not authorized by

the ADEA. Although such language was also missing

from the pre-1991 version of Title VII that the Court had

applied in Price Waterhouse, the Court found it significant

that in the wake of its Price Waterhouse decision, Congress

had amended Title VII to explicitly authorize mixedmotive discrimination claims. See § 2000e-2(m). Congress

had also specified a limited set of remedies for such mixedmotive claims in section 2000e-5(g)(2)(B). But Congress

had not similarly amended the ADEA. Its failure to do so

suggested to the Court that Congress had decided not to

authorize mixed-motive claims in age discrimination

cases. 129 S. Ct. at 2349. Consequently, the burdenshifting framework that the Court had set forth in Price

Waterhouse did not apply in ADEA cases. Id. at 2349-50.

The governing standard instead derived from the
8 No. 08-4010

language of the ADEA that forbids an employer from

taking adverse action against any individual “because of

such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis

supplied). “The words ‘because of’ mean ‘by reason of: on

account of.’ Thus, the ordinary meaning of the ADEA’s

requirement that an employer took adverse action

‘because of’ age is that age was the ‘reason’ that the

employer decided to act.” 129 S. Ct. at 2350 (citations

omitted). In order to prevail on a claim of disparate

treatment under the ADEA, then, “a plaintiff must prove

that age was the ‘but-for’ cause of the employer’s adverse

decision.” Id.; see also id. at 2351, 2352. In other words, proof

that the plaintiff’s age was a motivating factor, but not a

determinative factor, in the employer’s decision, will not

suffice to establish the employer’s liability. See id. at 2352.

Although the Gross decision construed the ADEA, the

importance that the court attached to the express incorporation of the mixed-motive framework into Title VII

suggests that when another anti-discrimination statute

lacks comparable language, a mixed-motive claim

will not be viable under that statute. Our recent decision

in Fairley v. Andrews, which dealt with a First Amendment claim brought under 42 U.S.C. § 1983, reflects that

understanding of the Supreme Court’s decision: “Gross . . .

holds that, unless a statute . . . provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden

in all suits under federal law.” 578 F.3d 518, 525-26

(7th Cir. 2009), petition for cert. filed (U.S. Dec. 21, 2009)

(No. 09-745).

Whether the ADA permits a mixed-motive claim (and

corresponding relief) therefore turns on the language of
No. 08-4010 9

Pursuant to the ADA Amendments Act of 2008, Congress has 1

made substantial changes to the ADA which took effect on

January 1, 2009. Among other revisions, the language of the

statute has been modified to prohibit an employer from discriminating against an individual “on the basis of disability.” 42

U.S.C. § 12112(a) (2009) (emphasis supplied). Whether “on the

basis of” means anything different from “because of,” and

whether this or any other revision to the statute matters in

terms of the viability of a mixed-motive claim under the ADA,

are not questions that we need to consider in this appeal. The

amendments took effect nearly a year after this case was tried

in February 2008 and nearly four and one-half years after

Serwatka was discharged in June 2004. To the extent that any

of the revisions might support a mixed-motive claim where the

language of the prior version of the statute did not, they

presumptively would not apply to conduct which took place

prior to their effective date absent a clear indication from

Congress that the changes were intended to apply retroactively.

See Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S. Ct. 1483,

1505 (1994); Kiesewetter v. Caterpiller Inc., 295 Fed. Appx. 850,

851 (7th Cir. 2008).

the statute and the presence or absence of text akin to that

of Title VII which authorizes mixed-motive claims. The

version of the ADA applicable to this case in relevant

part provides that “[n]o covered entity shall discriminate

against a qualified individual with a disability because

of the disability of such individual 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) (2008) (emphasis supplied).1

(The term “disability,” of course, is defined to in-
10 No. 08-4010

The ADEA, see 29 U.S.C. § 626(b), instead cross-references 2

the powers, remedies, and procedures of the Fair Labor Standards Act, which itself lacks a mixed-motives provision, see

29 U.S.C. § 215.

clude perceived as well as actual limitations. 42 U.S.C.

§ 12102(3).) Gross makes clear that in the absence of any

additional text bringing mixed-motive claims within the

reach of the statute, the statute’s “because of” language

demands proof that a forbidden consideration—here, the

employee’s perceived disability—was a “but for” cause

of the adverse action complained of.

There is no provision in the governing version of the

ADA akin to Title VII’s mixed-motive provision. See Parker,

supra, 204 F.3d at 336 (“the ADA includes no explicit

mixed-motive provision”); Foster, supra, 168 F.3d at 1033

(“Congress omitted the ADA from the purview of

Section 107[(a) [of the Civil Rights Act [of 1991]”). The

closest thing to such a provision is section 12117(a), which

as we have noted makes available to ADA plaintiffs the

same “powers, remedies, and procedures set forth in

sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9”

for Title VII plaintiffs. In that respect, the ADA is

different from the ADEA, which lacks a similar crossreference. Yet, although section 12117(a) cross-references 2

the remedies set forth in section 2000e-5(g)(2)(B) for mixedmotive cases, it does not cross-reference the provision

of Title VII, section 2000e-2(m), which renders employers

liable for mixed-motive employment decisions. See John L.

Flynn, Note, Mixed-Motive Causation Under the ADA:
No. 08-4010 11

Linked Statutes, Fuzzy Thinking, and Clear Statements, 83

Geo. L. J. 2009, 2042 (1995) (“The motivating factor amendment [to Title VII] is not a power, remedy, or procedure;

it is, instead, a substantive standard of liability.”). Like

the ADEA, the ADA renders employers liable for employment decisions made “because of” a person’s disability, and Gross construes “because of” to require a showing

of but-for causation. Thus, in the absence of a cross-reference to Title VII’s mixed-motive liability language or

comparable stand-alone language in the ADA itself, a

plaintiff complaining of discriminatory discharge under

the ADA must show that his or her employer would

not have fired him but for his actual or perceived disability; proof of mixed motives will not suffice.

Our decision in McNutt, supra, 141 F.3d 706, drives this

point home. The plaintiff in McNutt sued his employer

under Title VII, alleging that his job assignments were

the product of both race discrimination and retaliation

for the assertion of his statutory rights. Although a jury

rejected his claim of race discrimination, it did agree

that retaliation was a factor in the job assignments he

was given. However, the jury also found that he would

have been given the same assignments even if retaliation

had not figured into his employer’s decisionmaking.

Based on the jury’s mixed-motive finding as to retaliation, the district court granted the plaintiff injunctive

relief barring any additional retaliation and awarded

the plaintiff his attorney’s fees and costs. We vacated

the judgment order, concluding that this relief was not

authorized by Title VII. Absent from the language

added to Title VII by the Civil Rights Act of 1991 was any
12 No. 08-4010

recognition that an adverse employment decision motivated in part by retaliation but also by one or more legitimate factors constituted a violation of Title VII; mixedmotive decisions based in part on race, color, religion, sex,

and national origin were mentioned in section 2000e-2(m),

but mixed-motive decisions based on retaliation were

not. Id. at 707-08. “The omission of retaliation claims

from this new provision affects the relief that courts can

grant.” Id. at 708. Whereas section 2000e-5(g)(2)(B) authorized a court to grant declaratory and injunctive relief

and an award of a plaintiff’s attorney’s fees and costs in

the types of mixed-motive cases listed in section 2000e2(m), the omission of retaliation from that list meant

that such relief was unavailable to a plaintiff who

had shown that retaliation was a motivating but not a butfor cause of the adverse employment action taken against

him. Id. at 708-09. We noted in McNutt that two other

courts of appeals had reached this conclusion, id. at 709,

and when we subsequently reaffirmed McNutt’s holding

in Speedy v. Rexnord Corp., 243 F.3d 397, 406-07 (7th Cir.

2001), we noted that additional circuits had reached the

same conclusion.

McNutt confirms the import of explicit statutory language rendering an employer liable for employment

decisions that were motivated in part by a forbidden

consideration but which the employer still would have

made in the absence of that proscribed motive. In the

absence of such language, the limited remedies that

Title VII otherwise makes available to plaintiffs in such

cases (and which are cross-referenced by the ADA) are

foreclosed. Only by proving that a forbidden criterion
No. 08-4010 13

There is a separate provision of the ADA granting the district

3

court the discretion to award attorney’s fees and costs to a

prevailing party other than the United States. 42 U.S.C.

§ 12205(a). But the court did not rely on this provision in

awarding Serwatka a portion of her fees and costs, see 583

F. Supp. 2d at 997, and Serwatka herself has never claimed to

(continued...)

was a but-for cause of the decision can the plaintiff avail

herself of relief. In that respect, McNutt is consistent

with the Supreme Court’s subsequent decision in Gross.

Serwatka did not show that her perceived disability

was a but-for cause of her discharge. Although the jury

agreed with her that Rockwell’s perception of her limitations contributed to the discharge, it also found

that Rockwell would have terminated Serwatka notwithstanding the improper consideration of her (perceived)

disability. Relief is therefore not available to her under

the ADA, and Rockwell was entitled to judgment in its

favor. Cf. McNutt, 141 F.3d at 709.

The district court certainly cannot be faulted for not

anticipating the Supreme Court’s decision in Gross; our

own prior decisions had held that mixed-motive claims

were viable under ADA. See, e.g., Foster, 168 F.3d at 1033-

34. But in view of the Court’s intervening decision in

Gross, it is clear that the district court’s decision to award

Serwatka declaratory and injunctive relief along with a

portion of her attorney’s fees and costs cannot be sustained. The relief awarded to Serwatka was premised

solely on the jury’s mixed-motive finding, and as we 3
14 No. 08-4010

(...continued) 3

qualify as a prevailing party who is entitled to her fees and

costs under this provision. See Serwatka Br. 17.

1-15-10

have explained, given the lack of a provision in the ADA

recognizing mixed-motive claims, such claims do not

entitle a plaintiff to relief for disability discrimination.

The judgment is therefore VACATED, and the case is

REMANDED to the district court with directions to enter

judgment in favor of Rockwell. The parties shall bear

their own costs of appeal.