The world is full of incredible workers with disabilities. I think we can all agree that disabled does not mean unable.
The Americans with Disabilities Act (ADA) was enacted in 1990 to ensure that disabled individuals received equal opportunities within the work force as their able-bodied colleagues. Specifically, the ADA protects disabled individuals from being discriminated or retaliation against by their employers on the basis of their actual or perceived disability. (Best Law Read: Disability Discrimination: Can I Get A Work Accommodation? and Top Disability Discrimination Lawyer Reply: Can I Bring A Service Dog To Work As A Disability Accommodation Under The ADA?)
In addition to preventing discrimination based on disability, the ADA requires all employers with at least 15 employees to provide reasonable accommodations to employees with disabilities. A reasonable accommodation is any change in how a job is done or in the interviewing and hiring process for a job that allows someone with a disability to have equal opportunity for the position. (Best Law Read: ADA Law: How Do I Get A Disability Accommodation At Work?; Can I Get A Disability Accommodation?)
Are you afraid that asking for or using a reasonable accommodation may cause negative treatment towards you moving forward? Don’t worry! Our Disability Discrimination Attorneys are here to tell you why your employer better not do that! The ADA specifically prevents employers from retaliating against an employee for requesting and/or utilizing a reasonable accommodation under the ADA. (Best Law Read: Why Retaliation Is The Easiest Employment Claim; What Are Examples Of Unlawful Retaliation At Work?; Firing Employee On FMLA Following Miscarriage Is Evil).
Although there is no definition of “retaliation” under the ADA itself, the Equal Employment Opportunity Commission (EEOC) has defined retaliation as an adverse action against a covered individual because he or she engaged in a protected activity. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge). What the heck does that mean? Can you put that in normal terms? Of course, I can! Let’s break it down in two parts: what is a protected activity, and what is an adverse action?
What is a protected activity?
Best Employment Lawyer Answer: For disability discrimination, the protected activities include asserting your rights under the ADA – i.e., requesting a reasonable accommodation, opposing a practice that you believe to be unlawful discrimination – such as submitting a complaint about discrimination to HR or management, and participating in employment discrimination proceedings – i.e., being a witness of discrimination for a friend. These types of protects go beyond just disability claims. (Best Law Read: Can I Be Fired For Reporting Discrimination To HR?; Can I Be Fired For Reporting Safety Violations?; What Happens If My Job Retaliates Against Me For My Reporting Wage Violations?; Can My Boss Fire Me For Reporting His Sexual Harassment?).
What is an adverse action?
Best Wrongful Termination Attorney Answer: An adverse employment action is basically any negative conduct that directly and significantly affects an employee’s job. Some obvious examples include wrongful termination, failure to promote, demotion, cut in pay, and suspension of an employee, particularly without pay. However, adverse action can also include more discreate acts such as disciplinary warnings or reprimands, unfavorable transfers, negative or lowered evaluations, pay reductions, withholding of essential training, or reduction of sales leads. (Best Law Read: What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?). In retaliation cases, an adverse action can be any conduct that would dissuade a reasonable person from engaging in the same protected activity.
What is an example of a retaliation claim under the ADA?
Best Employment Retaliation Lawyer Answer: After reading every above, you think you might have been subjected to retaliation. Now you ask, how do I prove it?
Well let’s look at an example of an individual who failed to prove retaliation for requesting a reasonable accommodation. Sometimes the best way to explain how to do something is by explaining how not to do it!
In, Parker v. Brooks Life Science, Inc., 39 F.4th 931 (7th Cir. 2022), Suzanne Parker was a part-time receptionist at Brooks Life Science (“Brooks”) who suffers from multiple sclerosis and sciatica. Brooks had a PTO policy which required employees to request prior approval from their supervisors for planned time off and to enter the PTO hours they used in the company’s payroll software, Workday. Generally, employees did not have to use their accrued PTO if they were able to find someone to switch shifts with them, but planned schedule changes needed to be approved by a supervisor in advance.
Parker requested a reasonable accommodation in the form of time off during her employment to treat for her pain and for other doctor’s appointments. In March 2018, Brooks hired a new supervisor, Gillian Williams. As Parker’s supervisor, Williams coached Parker several times for failure to abide by Brooks’ PTO policy. Finally, after Parker continued to disregard the PTO policy and ignore Williams requests that Parker follow the PTO policy, Brooks terminated Parker. Parker then sued Brooks Life Science in December 2019, alleging claims of employment discrimination and retaliation based on race (which was later dismissed) and disability.
To prove her case, Parker first cited suspicious timing as indication that Brooks’ decision to terminate her was discrimination. Parker noted that her termination came two days after her October 8, 2018 email in which she requested an accommodation to alter her schedule for pain treatment. However, after reviewing Parker’s argument, the Court explained that suspicious timing alone, without other evidence, is generally not enough to support a claim of retaliation.
‘“Suspicious timing alone rarely established causation . . .” Sklyarsky v. Means-Knaus Partners, L.P., 777 F.3d 892, 898 (7th Circ. 2015). This is especially true where ‘a significant intervening event separate[es] [an employee’s protected activity] from [her] discharge.’ Davis v. Time Warner Cable of Se. Wis., L.P., 651 F.3d 664, 675 (7th Cir. 2011) (holding that the plaintiff’s intervening violation of employee guidelines broke the inference of causation based on the five-day interval between his complaints and termination).”
Looking at Parker’s case, the Court could see how the two-day period between a protected activity and termination could look suspicious. However, the Court determined that a significant intervening event separated the two actions. Here, other employees who worked with Parker informed Williams that Park had violated the company’s PTO policy while Williams was on vacation after Parker had requested her reasonable accommodation. Therefore, Williams could show that she only recommended Parker’s termination after finding out this separate significant event.
Next, Parker tried to argue that Brooks’ stated reason for terminating her was pretextual. Pretext is defined as a reason given in justification of a course of action that is not the real reason. So, what does a Court look at to see if something is pretextual. Well, in Parker’s case, the Court said:
when evaluating a plaintiff’s evidence of pretext, ‘it is not the court’s concern that an employer may be wrong about its employee’s performance, or be too hard on it’s employee. Rather, the only question is whether the employer’s proffered reason was . . . a lie.’ Ineichen v. Ameritech, 410 F.3d 956, 961 (7th Cir. 2005) (internal quotation marks omitted). To meet this burden at summary judgment, a plaintiff “‘must identify such weaknesses, implausibilities, inconsistencies, or contradictions’ in the employer’s asserted ‘reasons that a reasonable person could find it unworthy of credence.’” Marnocha v. St. Vincent Hosp. & Health Care Ctr., Inc., 986 F.3d 711, 721 (7th Cir. 2021) (quoting Baumehdi v. Plastag Holdings, LLC. 489 F.3d 781, 792 (7th Cir. 2007)).
In layman’s terms, an employee must poke holes in the employer’s reason for an adverse action, enough so that any reasonable person could see the employer was lying. This sounds simply, but clearly it is not because Parker was not successful. In Parker, the Court determined that Parker’s termination was not pretextual as it was based solely on Parker’s failure to follow the PTO policy for planned absences. When it came to Parker’s unplanned absences or shift swaps, Brooks was able to point to a paper trail of accommodating Parker’s unplanned requests.
So, here are the take aways from Parker. First, just because you have a reasonable accommodation does not mean you can ignore your employer’s other policies. Unless your reasonable accommodation specifically provides you the ability to go outside one of your employer’s policies, you are still subjected to the requirements of the policy. Second, if you are trying to prove retaliation, you will need more evidence than just closeness in time between a protected activity and an adverse action. Finally, if you are trying to prove pretext, you need to poke holes in your employer’s reason for an adverse action in a way that any person could see the employer was lying. You may think it’s a lie, but can you convince your grandma’s friend’s sister’s boyfriend that it was a lie? To do so you are going to need the best employment attorney’s help.
How do I get help to sue my employer for wrongfully firing me?
Best Employment Law Firm Answer: If you have gotten to the end of this post, and questioning your employer’s treatment of you based on your disability, then it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Proving retaliation may be tricky, but it can be done! Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes. Let us help you!
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