In addition to mandating reasonable accommodation for disabled employees, the law also prohibits employers from retaliating against employees who request accommodation under the ADA. The Equal Employment Opportunity Commission (EEOC) defines retaliation as an adverse action against a covered individual because he or she engaged in a protected activity. In the case of ADA retaliation, a protected activity would be seeking reasonable accommodation under the ADA.
Specific Examples of ADA Retaliation
Examples of retaliation include:
- Terminating or denying promotion
- Threatening, conducting unjustified negative evaluations
- Providing unjustified negative references
- Conducting increased surveillance and monitoring of an employee
- Making unfounded charges against employees that could deter them from exercising their rights under the act
Specific Examples of Protected Activity
Examples of protected activity include:
- Opposing a practice thought to constitute unlawful discrimination
- Participating in an employment discrimination proceeding
- Requesting reasonable accommodation based on religion or disability
Examples of Legal Actions Charging Retaliation
Another way of understanding ADA retaliation is to look at recent actions, either through individual employee lawsuits or through EEOC lawsuits. These can give an idea of the types of retaliatory behavior that is illegal under the ADA.
1) A Delaware County, Pennsylvania , 20-year employee of an auto service center was assaulted by his supervisor and then terminated because he refused to change a tire while on light duty following carpal tunnel syndrome surgery. The employee charged that he was fired because he filed a workers' compensation claim and requested accommodation for his disability, a violation of the ADA. The case is pending.
2) A Maryland woman filed suit against her employer, alleging that she was discriminated against based on her disability (morning sickness during pregnancy) and was retaliated against for seeking an accommodation for the disability. She had asked to work from home several days a week or use sick leave and was denied. She then resigned after being told that her job was full time and that she needed to commit to it.
The court ruled that pregnancy was not a recognized disability and that the employee had been returned to work by her doctor without restrictions. Thus, said the court, the employee's discrimination claim had no merit because she had failed to establish that she had a disability.
However, the retaliation claim was a different matter. The court found that the plaintiff had presented enough evidence to go to trial, focusing on two issues. These were whether the employer's refusal to permit working from home was an adverse action and whether the resignation constructive discharge. The comments about committing to the job could be a verbal warning by the employer and the denial of leave or work from home privileges could be an effort to prevent the employee or other employees from seeking accommodation or reporting discrimination. The case is pending.
3) A Minnesota company is being sued by the EEOC because it allegedly fired an employee who had been absent and had refused to provide medical information requested during a fitness-for-duty exam. According to the EEOC, the employer had requested medical information not related to the absence. The EEOC further charges that the company retaliated against the employee who refused to provide the information by firing him. The lawsuit is pending.
4) An Illinois woman who had taken intermittent medical leave for 10 years because of breast cancer and other conditions and who received positive feedback on her job performance was fired when she didn't show up to work. She believed she had been approved for leave again based on previous conversations with her supervisor. Her firing came in the form of a letter in which the supervisor acknowledged the employee's "voluntary resignation." The employee filed a lawsuit, charging discrimination and retaliation.
The court, when the employer requested summary judgment, found that a jury could reasonably decide that the employee had been refused reasonable accommodation and had been retaliated against for seeking that accommodation. The case had gone to trial and is pending.
5) A Wisconsin EEOC suit alleges that a company retaliated against an employee who refused to participate in an employee wellness plan. The company made the employee pay his own health insurance premiums in addition to paying a fine. The company eventually fired the employee. The issue, according to the EEOC, is whether the financial penalties made a voluntary program involuntary under the Affordable Care Act and whether firing the employee constituted retaliation under the ADA. The case is pending.
Number of Retaliation Cases Increasing
Whatever the results of these claims and lawsuits, retaliation cases are becoming a major part of EEOC activity. In 2012, for example, 38 percent of EEOC charges were retaliation cases. Although not all of them were involved ADA retaliation, it is clear that educating employers, even large employers, about the ADA and retaliation is critical to enforcing the law. Some have speculated that filing charges is one way the EEOC educates employers. Time will tell.