                   United States Court of Appeals,

                             Eleventh Circuit.

                               No. 95-3179.

              Bernard F. McNELY, Plaintiff-Appellant,

                                    v.

  OCALA STAR-BANNER CORPORATION, a Florida corporation; The New
York Times Company, a foreign corporation, Defendants-Appellees.

                              Nov. 20, 1996.

Appeal from the United States District Court for the Northern
District of Florida. (No. CV94-10057-MMP), Maurice Mitchell Paul,
Chief Judge.

Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior
District Judge.

      CARNES, Circuit Judge:

      In this Americans with Disabilities Act ("ADA") case, Bernard

McNely appeals from a judgment entered pursuant to a jury verdict

in favor of the defendants, Ocala Star-Banner Corporation and the

New York Times Company.        This appeal presents the question of

whether   a   plaintiff   suing    under      the    ADA   can   recover   for

discrimination without showing that his disability was the sole

cause for the adverse employment action taken against him. We hold

that he can, and that the district court erred by submitting to the

jury a special interrogatory verdict form that allowed recovery for

McNely's ADA discrimination claim only if the jury found that he

was   terminated   "solely    because    of    his    alleged    disability."

Similarly, we hold that it was error for the district court to

require the jury to find that McNely was terminated "solely because


      *
      Honorable James H. Michael, Senior U.S. District Judge for
the Western District of Virginia, sitting by designation.
he engaged in a statutorily protected expression" in order for him

to recover on his ADA retaliation claim.                Finally, in view of the

pleadings and evidence in this case, we hold that the district

court   erred   by    requiring     the    jury    to   find    that   McNely   was

"terminated" in violation of the ADA in order for McNely to recover

on either his discrimination claim or his retaliation claim.
                               I. BACKGROUND FACTS

     The     Ocala    Star-Banner         Corporation        ("Star-Banner"),     a

subsidiary    of   the   New    York    Times     Company,     publishes   a   daily

newspaper entitled the "Ocala Star-Banner."                     McNely began his

employment with Star-Banner in June 1980. Initially, McNely worked

as a "pressman."         Nine years later, in August 1989, McNely was

promoted to Night Supervisor of the Camera Department.

     In April 1992, McNely underwent brain surgery as a result of

an arteriovenous malformation of the brain.                     That surgery was

generally    successful,       except     that    McNely     subsequently      began

experiencing vision problems.             It was later determined that the

surgery had caused McNely to develop a form of "left homonymous

hemianopsia."        In simpler terms, the surgery damaged part of

McNely's brain, and as a result, he cannot clearly see the left

half of visual images.

     McNely's vision problems made it difficult, if not impossible,

to perform "close color registration," a process involving the

overlaying and lining up of color negatives to produce a color

image, which is then printed onto newsprint as a color picture.

Close color registration is but one of the duties of a supervisor

in the camera department and, for a time, Star-Banner arranged for
someone to assist McNely with his performance of that task.         That

assistance came to an end, however, when Star-Banner came to

believe that McNely's eye trouble could be corrected with new

eyeglasses.    At some point thereafter, McNely filed a grievance

about his working conditions with the Equal Employment Opportunity

Commission ("EEOC").

       For a time, McNely managed his duties without the assistance

that Star-Banner had withdrawn.     In August 1993, however, McNely's

vision difficulties—or his perception of them—led to a 40-minute

shutdown of the Star-Banner printing presses. McNely insisted that

the shutdown was caused by his inability to perform close color

registration    without   assistance,   but   Star-Banner    management

contended it was caused by McNely's willful refusal to perform his

job.    Subsequently, McNely was relieved of his supervisory duties

and was reassigned to the building maintenance department.          When

McNely objected to that, he was reassigned to do clerical work.

Later, Star-Banner reassigned McNely to the shipping and loading

department, which required him to perform tasks that he contends

were "difficult or impossible for a man of Plaintiff's medical and

physical condition to perform."

       On January 18, 1994, McNely met with Charles Stout, the

highest-ranking   executive   at   Star-Banner,   to   discuss   McNely's

overall work situation, including his work assignments.              That

meeting did not go well.      McNely ended up losing his temper and

calling Stout an "arrogant son-of-a-bitch."       Understandably, that

conduct ended the meeting, and McNely was immediately suspended

without pay. Star-Banner determined that McNely's suspension would
last for approximately six months, and that his employment would be
                                     1
terminated on July 28, 1994.             By letter, Stout informed McNely

that       his   suspension   and   termination   had   "resulted   from   your

repeated belligerent, abusive and insubordinate conduct towards me

and others at the Ocala Star-Banner."

       During his suspension, McNely received a "right to sue" notice

from the EEOC.          Thereafter McNely filed this lawsuit alleging

violations of the ADA.          In Counts I and III, McNely alleged that

Star-Banner and the New York Times had wrongfully discriminated

against him because of his disability.            In Counts II and IV, McNely

alleged that the defendants had retaliated against him for engaging

in     protected     expression,     specifically    for   filing   his    EEOC

grievance.

       Following five days of trial, McNely's claims were submitted

to the jury with a special interrogatory verdict form.              After more

than seven hours of deliberation, the jury found:            (1) that McNely

is an "individual with a disability" within the meaning of the ADA;

(2) that McNely had proven he was able to perform the essential

functions of the position of Camera Room Night Supervisor;                  (3)

that the defendants had failed to prove that they had reasonably

accommodated McNely;          and (4) that allowing McNely to work as a

Camera Room Night Supervisor would not have imposed an undue




       1
      The defendants contended that they suspended McNely for six
months, instead of terminating him immediately, "[i]n an act of
extraordinary compassion ... so that he would remain eligible for
medical benefits," but McNely characterized the suspension as
"yet another attempt by the employer to force Mr. McNely to sever
his employment with the Ocala Star Banner voluntarily."
hardship on the defendants. 2     Despite those findings, the jury's

ultimate verdict was for the defendants, because the jury answered

"No" to questions five and six on the verdict form, as follows:

     5. Do you find, by a preponderance of the evidence, that
     Plaintiff has proved that he was terminated solely because of
     his alleged disability?

             Yes                      No      X




     6. Do you find, by a preponderance of the evidence, that
     Plaintiff has proved that he was terminated solely because he
     engaged in a statutorily protected expression?

             Yes                      No      X




         After the district court denied his motion for a new trial,

McNely filed this appeal.     McNely's primary contentions on appeal

are that the special interrogatory verdict form was fatally flawed

in two ways.       First, McNely contends that inclusion of the term

"solely" in questions five and six erroneously prevented the jury

from returning a verdict for the plaintiff if the jury found that

impermissible discrimination or retaliation had a determinative

effect on the defendants' decisionmaking process, but was not the

sole reason for the employment decision.     Second, McNely contends

that questions five and six erroneously narrowed the jury's inquiry

to whether McNely was "terminated" because of discrimination or

retaliation, even though the ADA authorizes recovery for adverse

employment actions that fall short of termination and even though


     2
      The defendants did not cross-appeal to challenge any of
these four findings, and we express no opinion about them.
McNely had put on evidence of such actions in this case.3
                         II. STANDARDS OF REVIEW

         We apply the same deferential standard of review to a special

interrogatory verdict form that we apply to a district court's jury

instructions.     Cf. Bank South Leasing, Inc. v. Williams, 778 F.2d
704, 706 (11th Cir.1985) (holding that district court erred by

failing     to   give   jury   instructions   consistent   with   special

interrogatory verdict).        So long as the jury instructions and

verdict form "accurately reflect the law, the trial judge is given
wide discretion as to the style and wording employed."            U.S. v.

Starke, 62 F.3d 1374, 1380 (11th Cir.1995) (citing           McElroy v.

Firestone Tire & Rubber Co., 894 F.2d 1504, 1509 (11th Cir.1990)).

     3
      McNely makes two additional contentions in his quest for a
new trial, but neither of those need detain us long. First,
McNely contends that the verdict form and related jury
instructions were flawed because they failed to address a
provocation "defense" to McNely's alleged work place misconduct,
including his outburst during his meeting with Stout. However,
McNely does not cite, and we have not found, any authority that a
provocation defense to employee misconduct is recognized under
the ADA, or that provocation is in any way relevant to an ADA
claim. Therefore, we reject McNely's contention that the verdict
form and jury instructions should have addressed his provocation
defense.

          McNely also contends that the district court permitted
     defense counsel to engage in an impermissible "golden rule"
     argument at trial. McNely charges that defense counsel
     engaged in a prohibited golden rule argument by inviting the
     jury to put itself in the defendants' position when
     considering McNely's alleged work place misconduct and
     evaluating whether he was terminated because of his
     disability. However, an impermissible golden rule argument
     is an argument "in which the jury is exhorted to place
     itself in a party's shoes with respect to damages." Burrage
     v. Harrell, 537 F.2d 837, 839 (5th Cir.1976) (emphasis
     added). As in Burrage, "[i]n this case the argument
     complained of was not in any way directed to the question of
     damages; rather it related only to the reasonableness of
     appellee's actions." Id. (citations omitted). Accordingly,
     the argument was not impermissible.
On appeal, we examine whether the jury instructions and verdict

form, considered as a whole, were sufficient "so that the jurors

understood the issues and were not misled." Id. (quoting Wilkinson

v. Carnival Cruise Lines, Inc.,        920   F.2d   1560,   1569   (11th

Cir.1991)).    As for the subsidiary issue of whether the jury

instructions and verdict form "accurately reflect the law," Starke,

62 F.3d at 1380, we review that de novo, as with any other question

of law.    E.g., Swint v. City of Wadley, Ala.,      51 F.3d 988, 994

(11th Cir.1995).
  III. WHETHER McNELY WAIVED HIS OBJECTIONS TO THE VERDICT FORM

       The defendants contend that McNely waived his objections to

the verdict form because he failed to state his objections to the

verdict form after it was read to the jury.    We disagree.   McNely's

counsel raised his objections to the verdict form specifically and

directly on two separate occasions.    Before the case was submitted

to the jury, the court held a jury charge conference.          At that

conference, McNely's counsel objected to the verdict form on the

same bases that he raises on appeal:   (1) the inclusion of the term

"solely" in questions five and six, and (2) the limiting use of the

word "termination" in the same questions.      McNely's counsel made

extensive arguments in support of his request that the verdict form

be modified accordingly.    The district court stated that it was

"not inclined to change" the form, but would consider the matter

overnight.    The charge conference was then continued to the next

day.

       When the charge conference was reconvened the next day, the

following exchange occurred between the court and McNely's counsel:
     THE COURT:   When we parted yesterday, I told you I didn't
     think I was going to change this verdict, and I'm not, except
     for the agreed language change we made on—I forget where it
     was. Other than that, it is as it was yesterday.

     MR. O'NEILL:   Your Honor, if I may just for the record, I
     would like to perfect our objections to certain aspects of the
     verdict form that we raised yesterday; and, in particular,
     Your Honor, I think probably the major objection we have is
     the insertion of the words "solely because of the alleged
     disability" as that appears in Instruction 5 and Instruction
     6 on the verdict form, Your Honor.

Thereafter, McNely's counsel provided the court with argument and

citations of authority in support of his objections, including his

objection    to   the   limiting    use   of   the   word   "termination"   in

questions five and six.        Once again, the district court denied

counsel's request to modify the verdict form.

     After closing arguments, the district court delivered its

instructions to the jury, including instructions about completion

of the verdict form.        The district court then gave counsel the

opportunity to raise any new objections, but specifically stated:

"[A]ll   prior    motions,    all    prior      objections,    both   to    the

instructions or any matters that have taken place in the trial, all

motions will be considered raised again at this time. All previous

rulings will continue to apply."               In view of that assurance,

McNely's counsel did not raise and reargue the same objections that

he had already raised and argued twice, and that the district court

had twice overruled. In these circumstances, we hold that McNely's

counsel preserved his objections to the verdict form, and we

proceed now to the merits of those objections.                  See Landsman

Packing Co. v. Continental Can Co., 864 F.2d 721, 726 (11th

Cir.1989).
    IV. WHETHER USE OF THE TERM "SOLELY" IN THE VERDICT FORM
CORRECTLY STATED THE LIABILITY STANDARD UNDER THE AMERICANS WITH
DISABILITIES ACT

      The stated purpose of the ADA is "to provide a clear and

comprehensive    national    mandate   for    the   elimination   of

discrimination against individuals with disabilities." 42 U.S.C.A.
§ 12101(b)(1) (West 1995).    Title I of the ADA, which applies to

the    private   sector,    provides   for    the   elimination   of

disability-based discrimination as follows:

           No 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.

Id. § 12112(a) (emphasis added).       Title II of the ADA, which

applies to public sector employment, contains a parallel provision.

It provides:

           Subject to the provisions of this subchapter, no
      qualified individual with a disability shall, by reason of
      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 ADA also seeks to eliminate retaliation by employers

against employees who seek to enforce their statutory rights.

Specifically, Title IV of the ADA provides as follows:

           No person shall discriminate against any individual
      because such individual has opposed any act or practice made
      unlawful by this chapter or because such individual made a
      charge, testified, assisted, or participated in any manner in
      an investigation, proceeding, or hearing under this chapter.

Id. § 12203(a) (emphasis added).

      The defendants contend that the foregoing provisions impose

liability only if the employer takes an adverse employment action
solely because of a reason prohibited by the statute, and for that

reason the verdict form provided the jurors with an accurate

statement of the law.            Conversely, McNely contends that those

provisions impose liability if a prohibited reason was but one

factor in the employer's decision, so long as the inclusion of that

prohibited factor made the difference in the decision.                        Stated

differently, McNely contends that the ADA requires only "but-for"

causation before liability can be imposed.                In McNely's view, the

verdict form misstated the liability standard applicable to this

case.      We agree.

                          A. The Statutory Language

          As with any other statute, the appropriate starting point for

our analysis is the plain language of the statute itself.                "We must

give effect to this plain language unless there is good reason to

believe      Congress    intended     the    language     to    have   some    more

restrictive meaning."        Shaw v. Delta Air Lines, 463 U.S. 85, 97,

103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983) (citations omitted).

As   an    initial     matter,   we   note   that   the    foregoing    liability

provisions do not contain the word "solely," or any other similar

restrictive term.         Therefore, unless we can discern a very good

reason to read the restrictive term "solely" into two statutory

provisions where it is not found, this is a simple case.

        The defendants argue that a good reason for judicially writing

"solely" into the statute may be found in the ADA itself, when read

in conjunction with the Rehabilitation Act.                    Specifically, the

defendants point to the following language in the ADA:

             Except as otherwise provided in this chapter, 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 (29 U.S.C. 790 et seq.) or the regulations issued
     by Federal agencies pursuant to such title.

42 U.S.C.A. § 12201(a) (West 1995).      The defendants then point out

that the liability provision of the Rehabilitation Act contains the

word "solely," as follows:

          No otherwise qualified handicapped individual in the
     United States, as defined in section 706(7) of this title,
     shall, solely by reason of his handicap, be excluded from the
     participation in, be denied the benefits of, or be subjected
     to discrimination under any program or activity receiving
     Federal financial assistance or under any program or activity
     conducted by any Executive agency or by the United States
     Postal Service.

29 U.S.C.A. § 794 (West 1985) (emphasis added).            Thus, argue the

defendants, the ADA can provide no greater relief to victims of

discrimination    than   the   Rehabilitation   Act,   which   sets     up   a

sole-cause liability scheme, see, e.g., Severino v. North Fort

Myers Fire Control Dist., 935 F.2d 1179, 1182-83 (11th Cir.1991)

(affirming judgment in favor of employer on Rehabilitation Act

claim   because   employee     could   not   demonstrate    that   he    was

discriminated against solely on the basis of his handicap).

     Assuming that "lesser standard" in section 12201(a) means a

more plaintiff-friendly standard, the defendants' argument has some

superficial appeal.      However, it loses its appeal upon closer

inspection, because the same ADA provision the defendants rely upon

to import the sole-cause liability standard of the Rehabilitation

Act contains the limiting language "[e]xcept as otherwise provided

in this chapter," 42 U.S.C.A. § 12201(a) (West 1995).              Because

Congress has used language in the ADA that is broader than the

language included in the comparable provision of the Rehabilitation

Act, we are not persuaded that section 12201(a) nonetheless directs
us to import into the ADA the more restrictive Rehabilitation Act

language.    Instead, we are convinced that section 12201(a), by its

own terms, directs us not to do so.

     Moreover, we believe that importing the restrictive term

"solely"    from   the   Rehabilitation   Act   into   the   ADA   cannot   be

reconciled with the stated purpose of the ADA—"the elimination of

discrimination against individuals with disabilities," 42 U.S.C.A.

§ 12101(b)(1) (West 1995).      That is true, because a standard that

imposes liability only when an employee's disability is the sole

basis for the decision necessarily tolerates discrimination against

individuals with disabilities so long as the employer's decision

was based—if ever so slightly—on at least one other factor.                  A

liability standard that tolerates decisions that would not have

been made in the absence of discrimination, but were nonetheless

influenced by at least one other factor, does little to "eliminate"

discrimination;     instead, it indulges it.       The plain language of

the Rehabilitation Act appears to mandate such indulgence, but the

plain language of the ADA does not.

     Because we believe that importing the term "solely" into the

ADA is not warranted under the statute's plain language, is not

authorized by section 12201(a), and is not consistent with the

explicitly stated purpose of the statute, our analysis could stop

at this point.     Nevertheless, for the sake of completeness, we add

that even if section 12201(a) were viewed to create an ambiguity,

for the following reasons, the ADA's legislative history would

support the same result we reach under our plain language analysis.

                          B. Legislative History
     The ADA's legislative history does not directly inform us why

Congress chose to leave the word "solely" out of the liability

provision of Title I (the private sector title applicable to this

case), nor why Congress left that term out of the anti-retaliation

provision of Title IV.        However, the legislative history does

clearly explain why Congress chose to leave the word "solely" out

of Title II (the public sector title). Because the relevant causal

language   in   the   liability   provisions   of   all   three   titles   is

substantially identical, compare 42 U.S.C. § 12112(a) ("because of

the disability") with id. § 12132 ("by reason of such disability")

and id. § 12203 ("because such individual has made a charge"),

Congress' rationale for leaving "solely" out of the Title II

liability provision sheds some light on its rationale for leaving

the same word out of the parallel Title I and Title IV provisions.

The House Committee Report explained the decision to leave "solely"

out of Title II, as follows:

          The Committee recognizes that the phrasing of section 202
     in this legislation differs from section 504 [of the
     Rehabilitation Act] by virtue of the fact that the phrase
     "solely by reason of his or her handicap" has been deleted.
     The deletion of this phrase is supported by the experience of
     the executive agencies charged with implementing section 504
     [of the Rehabilitation Act]. The regulations issued by most
     executive agencies use the exact language set out in section
     202 in lieu of the language included in the section 504
     statute.

          A literal reliance on the phrase "solely by reason of his
     or her handicap" leads to absurd results. For example, assume
     that an employee is black and has a disability and that he
     needs a reasonable accommodation that, if provided, will
     enable him to perform the job for which he is applying. He is
     a qualified applicant. Nevertheless, the employer rejects the
     applicant because he is black and because he has a disability.

          In this case, the employer did not refuse to hire the
     individual solely on the basis of his disability—the employer
     refused to hire him because of his disability and because he
     was black. Although the applicant might have a claim of race
     discrimination under title VII of the Civil Rights Act, it
     could be argued that he would not have a claim under section
     504 [of the Rehabilitation Act] because the failure to hire
     was not based solely on his disability and as a result he
     would not be entitled to a reasonable accommodation.

          The Committee, by adopting the language used in
     regulations issued by the executive agencies, rejects the
     result described above.

H.R.Rep. No. 485(II), 101st Cong., 2nd Sess., at 85 (1990).                 The

Senate Committee Report contains a virtually identical passage.

See S.Rep. No. 116, 101st Cong., 1st Sess., at 44-45 (1989).

     The explanation the congressional committees gave shows that

Congress knew exactly what it was doing when, by omitting the word

"solely," it provided a different liability standard under Title II

of the ADA than it provided under the Rehabilitation Act. Congress

deliberately     used    different   language   in   the   ADA,   because   it

believed inclusion of the word "solely" in Title II could lead to

absurd results.         We have no reason to believe that Congress

intended to condemn absurd results in Title II of the ADA, but

using substantially identical language in Titles I and IV of the

same statute wanted to invite those same absurd results.               As we

explain below, turning to other evidence of congressional intent,

our conclusion is bolstered by the fact that when Congress enacted

the ADA, the Supreme Court already had rejected the notion that

"because of" in Title VII cases could be construed to mean "solely

because of."

 C. The Supreme Court's Interpretation of "Because of" in Title
VII Cases

     Title VII makes it unlawful for an employer "to fail or refuse

to   hire   or   to     discharge    any   individual,     or   otherwise   to
discriminate      against        any     individual     with    respect        to    his

compensation,     terms,    conditions,       or     privileges   of    employment,

because    of   such   individual's        race,     color,    religion,      sex,    or

national    origin."        42    U.S.C.A.     §    2000e-2(a)(1)       (West       1994)

(emphasis added).        The relevant causal language of Title VII's

liability   provision      is     substantially       identical    to    the    causal

language at issue in this case.             Compare id. (Title VII) ("because

of") with 42 U.S.C.A. § 12101(b)(1) (ADA Title I) ("because of")

and 42 U.S.C.A. § 12203 (ADA Title IV anti-retaliation provision)

("because").

     When Congress enacted the ADA in 1990, the Supreme Court had

already authoritatively determined that, for Title VII cases,

"because    of"   does   not      mean    "solely     because    of."    In         Price

Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d

268 (1989), the Supreme Court focused on the nature of the causal

connection required by the phrase "because of" in Title VII cases.

No opinion of the Court garnered a majority of the votes in Price

Waterhouse, in part because the justices held differing views about

whether the "because of" requirement meant that the impermissible

consideration was a "but-for" cause, or meant only that it had been

taken into account in the decisionmaking process.                  Compare id. at

244, 109 S.Ct. at 1787 (plurality opinion) with id. at 262-63, 109

S.Ct. at 1797 (O'Connor, J., concurring in the judgment). However,

all of the justices agreed that "because of," as used in Title VII,

does not mean "solely because of."                 See id. at 241, 109 S.Ct. at

1785 (plurality opinion); id. at 258-59, 109 S.Ct. at 1795 (White,

J., concurring in the judgment);             id. at 262-63, 109 S.Ct. at 1797
(O'Connor, J., concurring in the judgment);                  id. at 284, 109 S.Ct.

at 1808 (Kennedy, J. dissenting);            see also Miller v. CIGNA Corp.,

47 F.3d 586, 592-94 (3rd Cir.1995) (analyzing and summarizing the

"because of" analysis contained in the various Price Waterhouse

opinions).

         A   familiar      canon    of    statutory        construction    is     that

"evaluation of congressional action must take into account its

contemporary      legal    context."         Morse    v.    Republican     Party    of

Virginia, --- U.S. ----, 116 S.Ct. 1186, 1190, 134 L.Ed.2d 347

(1996) (plurality opinion) (citing Cannon v. University of Chicago,

441 U.S. 677, 698-99, 99 S.Ct. 1946, 1958-59, 60 L.Ed.2d 560

(1979));     see also Motorcity of Jacksonville, Ltd. v. Southeast

Bank    N.A.,     83    F.3d   1317,     1331    (11th      Cir.1996)     (en   banc)

(recognizing      principle      that    "Congress     legislates       against    the

background of the existing common law").                     That presumption is

particularly compelling where, as here, Congress adopts operative

language     to   which    the     Supreme   Court     has    recently     given   an

authoritative interpretation in a similar context.                  When Congress

enacted the ADA, it did so against the backdrop of recent Supreme

Court employment discrimination case law that interpreted the

phrase "because of" not to mean "solely because of."                       We think

Congress knew what it was doing, and we hold that the ADA imposes

liability whenever the prohibited motivation makes the difference

in the employer's decision, i.e., when it is a "but-for" cause.

                       D. ADA Cases from Other Circuits

       Despite    the    plain   language       of   the   ADA,   its   legislative

history, and the Supreme Court's interpretation of identical causal
language   in   Title    VII,    the    defendants    argue    that    we   should

nonetheless interpret "because of" to mean "solely because of."

They contend that precedents from the Fourth, Fifth, Seventh, and

Tenth Circuits support that interpretation, and point us to Doe v.

University of Maryland Medical Sys., 50 F.3d 1261 (4th Cir.1995);

Myers v. Hose, 50 F.3d 278 (4th Cir.1995);                 Rizzo v. Children's

World Learning Ctrs., 84 F.3d 758 (5th Cir.1996);                     Despears v.

Milwaukee County, 63 F.3d 635 (7th Cir.1995);                and White v. York

Int'l Corp., 45 F.3d 357 (10th Cir.1995).                  Even if all five of

those   cases   from    four    other   circuits     had   actually    held   that

"because of" means "solely because of" under the ADA, we would

still part company with those circuits, because we are firmly

convinced that such an interpretation is contrary to the language

of the statute and the intent of Congress.             However, in this case,

our task is made much easier by the fact that only one of the five

decisions cited by the defendants actually held that "because of"

in the ADA context means "solely because of."               The others did not.

     In University of Maryland Medical Sys., 50 F.3d at 1266, the

Fourth Circuit affirmed summary judgment for an employer in an ADA

case because the employee was not a "qualified employee with a

disability" within the meaning of the ADA.                  Although the court

stated that an ADA plaintiff is required to prove that he was

discriminated against "solely on the basis of the disability" in

order to prove his case, id. at 1264-65, that observation is

dictum.    Because the court determined that the plaintiff was not a

qualified employee with a disability to begin with, it was not

required to, and did not purport to, examine the causal connection
between the plaintiff's termination and his disability.

      Similarly, in Myers, 50 F.3d at 282, the Fourth Circuit

affirmed summary judgment for an employer in an ADA case because

the employee was not a qualified individual with a disability.

Although   the   court    observed   in   dicta   that    "the    substantive

standards for determining liability are the same" under the ADA and

the Rehabilitation Act, id. at 281, the court was not required to,

and did not purport to, authoritatively resolve the issue that

faces us today.

      In Rizzo, 84 F.3d at 760, the Fifth Circuit reversed summary

judgment in favor of an employer, because it found that a genuine

question of material fact existed as to whether the plaintiff was

a qualified individual with a disability. Because the defendant in

that case did not deny that the plaintiff was terminated because of

her disability, there were no causal connection questions in the

case.   See id. at 762.     Although the court did observe that the ADA

required the plaintiff to prove that her employer took an adverse

employment   action      "solely   because   of   her    disability,"    that

observation has no bearing on the court's decision;              it is dictum.

      In White, 45 F.3d at 363, the Tenth Circuit affirmed summary

judgment for an employer because the employee was not a qualified

individual with a disability.        As with the foregoing cases, the

court had no occasion to consider the causal connection question at

issue in this case, and it explicitly declined to address "whether

York terminated [the plaintiff] solely because of his disability."

Id.   A court does not make a holding with language directed toward

an issue it expressly declines to address.
        To summarize, the foregoing cases do not trouble us. Although

they do contain dicta that supports the defendants' position, we

are not required to follow dicta contained in our own precedents,

much less dicta from our sister circuits.                  Dicta can sometimes be

useful when it contains a persuasive analysis of a particular

issue, but the opinions in the foregoing cases are not even useful

for that purpose, because they do not include any meaningful

analysis of whether "because of" in the ADA context means "solely

because of."         The passing references that those cases make to the

applicable causal standard shed little or no light on the question,

and give us no pause.

        However, Despears v. Milwaukee County, 63 F.3d 635 (7th

Cir.1995), is more problematic.                In that ADA case, the Seventh

Circuit affirmed summary judgment for an employer.                  Id. at 637.    In

doing    so,    it   held—not       merely   stated   in   dicta,    but    held—that

judgment       for   the     employer    was   proper,     because    the    alleged

disability was not the sole cause of the demotion in question.                     No

extended discussion or helpful rationale is given in Despears for

the holding that the ADA requires a showing of sole causation.

Because we believe that holding is contrary to the language of the

statute,       the    will     of    Congress,    and      the   Supreme      Court's

interpretation of substantially identical causal language in the

Title VII context, we decline to follow it.

     We hold that the "because of" component of the ADA liability

standard imposes no more restrictive standard than the ordinary,

everyday meaning of the words would be understood to imply.                       In

everyday usage, "because of" conveys the idea of a factor that made
a difference in the outcome. The ADA imposes a "but-for" liability

standard.     The contrary verdict form language is error which

requires reversal.        That is not the only error in the verdict form.
   V. WHETHER THE VERDICT FORM ERRONEOUSLY LIMITED RECOVERY TO
"TERMINATION"

      According to questions five and six of the verdict form, in

order for the jury to return a verdict for McNely on either his

discrimination      claim    or   his   retaliation    claim,   the    jury   was

required to find that McNely was "terminated" for a prohibited

reason.   However, the ADA protects against more than termination.

It   prohibits      discrimination      "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.A. § 12112(a) (West 1995);

see also id. § 12203 (anti-retaliation provision) (prohibiting

employers to "discriminate").           In other words, the ADA prohibits a

broad variety of adverse employment actions, whenever those actions

are taken for a prohibited reason.

     McNely's complaint alleged a variety of adverse employment

actions     short    of   his     ultimate    termination.         Specifically,

paragraphs twenty-two and twenty-three of his complaint, which were

incorporated into every count, made the following allegations:

          22.    After    withdrawing   Plaintiff's    reasonable
     accommodation in the Camera Department, Defendant reassigned
     Plaintiff to janitor's duty requiring Plaintiff to clean
     toilets and bathrooms, among other janitorial duties.

          23. Defendant subsequently reassigned Plaintiff to the
     shipping and loading department, and required Plaintiff to
     perform loading and other physically strenuous tasks difficult
     or impossible for a man of Plaintiff's condition to perform.

     It is undisputed that, after the 40-minute press delay in
August    1993,   Star-Banner    reassigned    McNely     to   the    building

maintenance department.      It is also undisputed that after McNely

complained about being assigned to the maintenance department,

Star-Banner reassigned him to do clerical work, and then reassigned

him once again to the distribution department.          At trial, evidence

about those transfers was admitted, and McNely argued to the jury

that those actions were taken for a discriminatory reason.                   In

turn, Star-Banner argued that those transfers were an attempted

accommodation of McNely's medical condition. The jury instructions

informed the jury that McNely could recover for "adverse employment

action," defined as "action that has a negative effect on terms,

privileges, or other conditions of employment, such as hiring, job

assignment,       termination,    granting     leave,      promotion        and

compensation." Nevertheless, over McNely's objection, the district

court declined to modify the verdict form to permit recovery for

adverse employment action short of termination.           As a result, the

verdict form was inconsistent with the ADA, with the complaint,

with     the   evidence   presented   at   trial,   and    with      the   jury

instructions.
                              VI. CONCLUSION

       The verdict form submitted to the jury in this case did not

accurately reflect the law or the evidence presented at trial.

First, the verdict form required a finding of sole causation in

order for McNely to recover, while the ADA requires only a finding

of "but-for" causation.      Second, the verdict form barred recovery

for adverse employment actions short of termination, when the ADA

permits recovery for those less drastic forms of discrimination and
when evidence of such lesser discrimination was presented at trial.

Under these circumstances, we cannot conclude that the jurors

understood the issues and were not misled by the verdict form.            See

U.S.   v.   Starke,   62   F.3d   1374,   1380   (11th   Cir.1995)   (quoting

Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1569 (11th

Cir.1991)).

       Therefore, we REVERSE the judgment of the district court and

REMAND for a new trial.
