Specially Concurring.
I concur in the judgment and in all of the court’s opinion except Note 2 and Part III.B.2. I disagree with the court’s conclusion that the district court should choose between a “because of’ instruction or a motivating factor instruction in ADA cases. That conclusion contradicts our holdings in Part III.B.1 and Part III.B.3. In addition, it inappropriately imports a Title VII standard that does not apply in the ADA context.
In Part III.B.1 we hold that “the ADA outlaws adverse employment decisions motivated, even in part, by animus based on a plaintiffs disability or request for an accommodation — -a motivating factor standard.” 1 We also clearly state that “ ‘solely’ is not the appropriate causal standard under any of the ADA’s liability provisions.”2 Thus, a plaintiff in an ADA case is never required to show that impermissible animus was the sole cause of an adverse employment decision. The plaintiff need only show that such animus at least partially motivated the employer to make its adverse employment decision. Consequently, any jury instruction that requires a plaintiff to show that an impermissible animus solely caused an adverse employment action misstates the law.
In Part III.B.3 we hold that the district court’s use of “because of’ and “because” jury instructions in this case was prejudicial because a jury may impermissibly infer a “sole” causation requirement from a “because of’ instruction.3 We recognize that “the ‘because of instruction given [by the district court] could have allowed a jury to conclude that Head needed to show sole causation and thus to deny liability for Glacier even though the jury had found that both reasons played a role in motivating Glacier’s discharge of Head.”4 Because the “because of’ jury instruction may have caused Head to have to prove sole causation, it misstated the law.
The majority’s approach in Part III.B.2 directly contradicts the holdings described above. It would require the trial court to give a “because of’ instruction if it “determines that the only reasonable conclusion the jury could reach is that discriminatory animus is the sole reason for the challenged action or that discrimination played no role in the decision.”5 As we hold in Part III.B.3, such an instruction would impermissibly allow jurors to infer a “sole” causation requirement.6 As we hold in part III.B.1, a plaintiff is never required to *1068establish that discriminatory animus solely caused an adverse employment decision. Thus, the majority’s approach contradicts the rest of its opinion and mandates the use of a jury instruction the majority has itself found to be improper.7
The majority arrives at its internally contradictory opinion because it imports a standard borrowed from Costa v. Desert Palace, Inc.,8 a Title VII case, that does not apply in the ADA context. In Costa, we explained that after hearing all the evidence, the district court must choose between a “because of’ and “motivating factor” jury instruction.9 It would choose the former if “the only reasonable conclusion a jury could reach is that discriminatory animus is the sole cause for the challenged employment action or that discrimination played no role at all in the employer’s decisionmaking.”10 It would choose the latter if “the evidence could support a finding that discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate.”11
The choice of jury instructions makes sense in the Title VII context. However, it does not make sense to transfer Title VII’s approach to the choice of jury instructions in an ADA case.12 Differences in the language and interpretation of the two statutes requires a choice of jury instructions in the Title VII context and only one jury instruction in the ADA context: a motivating factor instruction. Although Title VII and the ADA both contain “because of’ type language for liability,13 Title VII contains additional statutory language about defenses. Most significantly, Title VII allows for a “same decision” defense in cases in which the plaintiff argues that discrimination was not the sole motivation of the employer’s adverse action, but only a motivating factor.14 In such cases, if the jury concludes that the employer would have taken the same adverse action even without the discriminatory reason, the employer’s liability is severely curtailed.15 Thus, a plaintiffs decision to establish discrimination as a sole cause or merely a motivating factor is a significant one in Title VII cases. Moreover, the language *1069in Title VII drives Costa’s holding that the court must choose between two alternative jury instructions depending on the evidence the plaintiff presented.16 There is no similar language in the ADA. The ADA does not provide for a “same decision” defense. Neither does it provide any mechanism for the reduction of damages depending on whether discriminatory animus motivated the employer’s action in whole or in part. Finally, we hold today that plaintiffs need only ever show that discrimination is a motivating factor in an ADA case. Accordingly, the rationale for selecting between jury instructions in a Title VII case is absent in the ADA context.17
For these reasons, I cannot join in Note 2 and Part III.B.2 of the majority’s opinion. Under our decision, only a “motivating factor” jury instruction is appropriate in an ADA case.
. Majority Opinion at 1065.
. Id. at 1065.
. Id. at 1066.
. Id. at 1066.
. Id. at 1066.
. See id. at 1066 (acknowledging that a jury may infer a "sole” causation requirement from a "because of" instruction).
. See White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir.2002) ("Jury instructions must fairly and adequately cover the issues presented, must correctly state the law, and must not be misleading.”). Majority Opinion at 1066.
. 299 F.3d 838 (9th Cir.2002), aff’d 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).
. Costa, 299 F.3d at 856.
. Id. (emphasis in original).
. Id. at 857. Despite these differing jury instructions, we emphasized that regardless of the instruction given, plaintiff's ultimate burden under Title VII is to show an adverse employment decision "because of” discrimination. Id.
. Many aspects of the Title VII context do transfer to the ADA context. See, e.g., Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th Cir.2001).
. See 42 U.S.C. §§ 2000e-2, 12112(a), 12132, 12203(a).
. 42 U.S.C. § 2000e-5(g)(2)(B). This section provides:
On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
Id.
. Id.
. Id.
. Furthermore, in light of the fact that a plaintiff need only show that discriminatory animus partially motivated the challenged action, regardless of the evidence actually presented, it is a waste of scarce judicial resources to require district courts to make this unnecessary determination in an ADA case.