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ADA Cognition Translation Center Legal Brief No. three

Sharan East. Brown

ADA Cognition Translation Eye

2020

Introduction

The Americans with Disabilities Human action (ADA) protects individuals with disabilities from retaliation for, and interference in, exercising their rights under Title I, Two and III of the law. Retaliation and interference are distinct forms of bigotry under the ADA and the rights of individuals to exist free from retaliation and interference are in improver to the other rights under the police force. This certificate focuses on retaliation and interference in employment under Title I of the ADA although equally explained beneath, the statutory protections from retaliation and interference are the same for all Titles.[1]

When an individual exercises their rights nether the ADA, those actions are protected activities. For instance, a asking for reasonable adaptation is a right under Championship I and therefore a protected activity. A protected action can also include opposing a practice the individual thinks is unlawful bigotry nether Title I. Examples of opposition can be an internal complaint to man resources personnel or an individual'southward supervisor. Information technology can besides be filing formal complaints with the Equal Employment Opportunity Commission (EEOC). EEOC is the federal regulatory agency enforcing employment nether the ADA and numerous other federal civil rights laws. In add-on, opposition includes filing a complaint with a comparable land agency or a request for judicial review.

If an employer then takes agin action against the employee making the request for an accommodation or opposing some practice by making a complaint, the employer's response is retaliation. Adverse action tin can include such things as firing an employee, denying a promotion, and giving negative evaluations that are unsupported. The EEOC has reported that in a significant number of their investigations, a claim of discrimination under Title I was non substantiated just the retaliation merits was.[2]

There has been a dramatic increase in the number of retaliation cases investigated by the EEOC since the ADA was enacted.[3] According to the EEOC, "retaliation has been the nearly frequently alleged basis of discrimination in the federal sector since 2008"[4] and was the most common type of employment discrimination finding afterward an EEOC investigation of all federal employee complaints in 2013.[5] Although the ADA was non the but federal civil rights law included in these reports, they highlight the prevalence of retaliation complaints in employment mostly. In some cases, the EEOC volition settle a complaint charging retaliation through mediation betwixt the employee and employer. When that is not successful, the EEOC will investigate the complaint to determine if there is "reasonable cause" to believe discrimination has occurred. If then, the agency will investigate and attempt to resolve the issue with the employer. If that is also unsuccessful, the EEOC may file a court activity. If the agency decides non to file suit, information technology will issue "a right to sue" which allows the employee xc days to file a courtroom action.[6]

The federal courts oft hear ADA employment cases in which the issues are both the employer's denial of a right nether Title I and retaliation or interference against the employee for exercising that right. Dissimilar the report from the EEOC regarding the substantiation of retaliation claims in employment cases referred to before, a contempo review of all retaliation cases under Title I, since the amendments to the ADA became effective in 2009, institute that in 75% of all federal cases the courtroom found in favor of the employer.[7] Because the EEOC has pursued a growing number of employment retaliation complaints under the ADA and works vigorously to settle complaints, employers may not be challenging most complaints and those that are litigated are those with bereft evidence to find retaliation. As discussed subsequently in this certificate, it is hard for individuals to prove retaliation and/or interference under Title I in court. Notwithstanding, there are indications that some federal courts are beginning to reevaluate the prove required and lower the brunt of proof.

The retaliation and interference clauses nether the ADA and the remedies available for violations are described in the section below, followed by a discussion of all-encompassing guidance from EEOC on these problems. The relevant Usa Supreme Court and federal appellate circuit court decisions concerning retaliation and interference are summarized throughout. The paper concludes with information on the spider web-based EEOC resources available for retaliation and interference in employment nether federal nondiscrimination law including the ADA

ADA Statutory Protections from Retaliation and Interference

This section begins with a brief review of the relationship betwixt the ADA retaliation and interference clauses and other federal statutes addressing employment bigotry that too include protection from retaliation. These include Title Seven of the Civil Rights Act of 1964 (Title VII) and the amendments enacted in 1991, and the Age Bigotry in Employment Act (ADEA) of 1967. The EEOC guidance as well as judicial decisions concerning retaliation nether Title 7 and ADEA have been instrumental in understanding this upshot nether the ADA.[viii]

The intent of Championship Seven of the Ceremonious Rights Act of 1964 is to address the widespread employment discrimination experienced past groups historically denied opportunities enjoyed by others in the The states. Title VII includes two wide prohibitions. First, covered employers cannot discriminate on the basis of race, colour, religion, sexual activity, or national origin in employment related matters.[9] In essence, this prohibits an employer from basing employment decisions on an private's status. Second, covered employers cannot discriminate confronting any individual because they have complained of, opposed, or participated in a proceeding related to prohibited discrimination.[10] This department is referred to equally the retaliation provision. It is considered the main method of ensuring nondiscrimination because information technology protects an employee's right to complain about violations under the police force and ensure that those complaints are addressed.

The Age Discrimination in Employment Deed (ADEA) was enacted in 1967 to accost bigotry on the basis of age in employment and to promote employment of persons based on their ability, not their historic period.[xi] Like Championship Vii, it applies to employers, individual and public, labor organizations, and employment agencies.[12] Information technology is unlawful under the law "to fail or refuse to rent or to discharge any private or otherwise discriminate against any private with respect to his compensation, terms, weather condition, or privileges of employment considering of such individual's age."[thirteen] The ADEA protects individuals over historic period 40 and, like Title VII, prohibits retaliation against an individual for filing a charge or opposing a practice made unlawful past the ADEA.[14]

Congress enacted the ADA to address systemic societal discrimination of individuals with disabilities in this land, including in employment. The stated purpose of the ADA is to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.[15] This is similar to the intent of Title Vii of the Civil Rights Act and the ADEA for individuals protected nether those laws. Although the ADA has unique aspects when compared with these before nondiscrimination statutes, it as well mirrors these laws in many means. One way the ADA is like concerns the full general protection from retaliation when exercising one'due south rights under the ADA. Nonetheless, the ADA likewise adds an additional protection from interference that is not included in Title Seven or ADEA. Protection from interference is mentioned in the Fair Housing Act (FHA), Family and Medical Leave Act (FMLA), and the National Labor Relations Human action (NLRA).

As stated before, these rights extend across three titles of the ADA. These are Title I (employment), Title II (programs and services of local and land government), and Title III (public accommodations). However, there is no specific mention of retaliation or interference in Titles I, Two, or Iii. Instead, protection from retaliation and interference is included in Title 5 of the ADA, the title that addresses miscellaneous bug relevant across the other titles of the statute.[16] There are three clauses in Title V relevant to retaliation and interference as discussed beneath.[17]

Retaliation Clause

The retaliation clause prohibits discrimination against an individual because the individual has opposed something unlawful under the ADA or has been involved in some blazon of complaint action.

(a) Retaliation

No person shall discriminate confronting whatever individual considering such individual has opposed any act or practice made unlawful by this affiliate or considering such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing nether this affiliate. 42 U.S.C. §12203(a).

At that place is no definition of retaliation in the ADA itself. Nonetheless, the EEOC has divers retaliation equally an adverse action against a covered individual because he or she engaged in a protected activity.[18] Retaliation includes both oppositional and participatory activities. Offset, retaliation includes activities that oppose any practice unlawful under the ADA. The EEOC has expanded on this to explain that oppositional activities "include[s] the many ways in which an individual may communicate explicitly or implicitly opposition to perceived employment discrimination."[nineteen] The EEOC states that the manner of opposition must be reasonable and the opposition must exist based on a reasonable belief that the behave opposed is unlawful.

Participatory activities are besides included in the definition of retaliation. Those activities have been defined as "having made a accuse, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under the ADA. It may "include filing or serving as a witness in an authoritative proceeding or lawsuit alleging discrimination."[20] To help illustrate what behaviors in the workplace would be considered retaliation—both oppositional and participatory—the EEOC Enforcement Guidance on Retaliation and Related Issues (future EEOC Enforcement Guidance) as well as settlement agreements are proficient resources.[21]

The language of the ADA retaliation clause is well-nigh identical to that of Title Seven and the ADEA. There was a fair corporeality of litigation under these earlier laws to assist define retaliation; even so, the federal Circuit Courts of Appeals could not concord on what employer deportment constituted retaliation under the nondiscrimination laws. In 2006, the United States Supreme Courtroom provided some guidance in Burlington Due north. & Santa Fe R.R. Co. v. White.[22] The Court addressed the retaliation standard under Title VII of Civil Rights Act in that case. Considering of the similarity betwixt the anti-retaliation protections in Title 7 and the ADA, courts after Burlington applied the standard announced in that case to retaliation claims under Title I.

3 holdings from the Burlington decision are incorporated into the analysis of ADA retaliation decisions. First, the Burlington Court held that retaliatory action does not take to exist employment or workplace-related to be actionable. For example, if an employer files imitation criminal charges against an employee that could exist actionable retaliatory action.[23] Second,

A plaintiff must bear witness that a reasonable employee would have establish the challenged action materially agin, which in this context means information technology well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.[24]

Finally, the Court stated that to determine whether a certain action was likely to deter an employee from complaint activities would often depend on the particular circumstances—in other words—context matters.[25] The example given in the case was that a piece of work schedule change may not adversely bear upon most employees, just it may well practice so if the employee is a mother with young children.[26] Despite the application of the Burlington standard to retaliation in disability discrimination complaints, there continues to exist mixed results in the federal courts as discussed later in the paper.

Numerous cases since Burlington take focused on how to define "reasonable" and "materially agin" in retaliation cases. Reasonable in the retaliation assay under the ADA means the individual must have a "reasonable proficient faith belief" that the conduct opposed violates the ADA or "could practise so if repeated."[27] Even if the ADA has non been violated, if it is understandable that a person would call back it had been, the individual is protected from any retaliation. The EEOC opines that without this protection, although the private is not actually opposing or participating in complaint activity or opposing discrimination, because no discrimination has occurred, the person is protected past simply making a complaint or requesting an adaptation.[28]

The EEOC has defined "materially adverse" to mean "any action that might deter a reasonable person from engaging in protected activity."[29] The agency antiseptic that such deportment can include those that "can exist challenged direct every bit employment discrimination."[xxx] Those actions can be outside the work place "as long every bit it may deter a reasonable person from engaging in protected activity."[31] The merely requirement is that the employer'southward action was reasonably likely to stop the individual from exercising their ADA rights, non that the individual was, in fact, prevented from doing so.[32]

As noted in the Burlington decision, the EEOC reiterates that whether an action is "materially adverse" will depend on the facts and circumstances of the particular case. Actions that would non exist considered materially adverse are "a petty slight, small-scale annoyance, trivial punishment, or any other action that is not likely to dissuade an employee from engaging in protected activity in the circumstances."[33] An employer'due south brief delays in issuing refund checks to employees was deemed bereft to rise to the level of materially adverse action in Fanning 5. Potter.[34] All the same, revoking the flex-time schedule of an employee who received permission to vary her schedule in lodge to provide care for her disabled child was considered materially adverse in Washington v. Illinois Dep't of Revenue.[35]

The second relevant section in Title Five is referred to as the interference clause.[36]

Interference Clause

The interference clause makes certain employer behaviors unlawful under the ADA. These behaviors include the following: coercion, intimidation, threatening behavior, interference with an individual exercising one of his or her rights nether the ADA, or for aiding or encouraging someone else to savour these aforementioned rights.

(b) Interference, compulsion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any private in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the do or enjoyment of, whatever correct granted or protected by this chapter. 42 U.s.C. §12203(b).

The ADA and implementing regulations do not define the specific terms within the interference clause. However, the terms used—i.due east., coerce, intimidate, threaten and interfere—have been "interpreted [by the EEOC] to include at least certain types of deportment which, whether or non they rise to the level of unlawful retaliation, are nonetheless actionable equally interference."[37] The EEOC has provided additional guidance in this area including a list of examples of conduct that would exist interference nether Championship I and therefore prohibited past ADA. These include:

Coercing an private to relinquish or forgo an accommodation to which he or she is otherwise entitled;
Intimidating an bidder from requesting accommodation for the application process by indicating that such a asking will consequence in the applicant not existence hired;
Threatening an employee with loss of employment or other agin treatment if he does non "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;
Issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a stock-still leave policy that states "no exceptions will exist made for any reason");
Interfering with a former employee'due south right to file an ADA lawsuit against the quondam employer by stating that a negative task reference will be given to prospective employers if the suit is filed; and
Subjecting an employee to unwarranted discipline, demotion, or other agin treatment because he assisted a coworker in requesting reasonable accommodation.[38]

Interference does not include all behave (or statements) that might exist intimidating to an individual. The ADA merely "prohibits behave that is reasonably probable to interfere with the exercise or enjoyment of ADA rights."[39] An employer's action may exist both retaliation and interference according to the EEOC and "may [also] overlap with unlawful deprival of accommodation."[40] The bureau has clarified that a "threat does not have to be carried out in social club to violate the interference provision, and an individual does non actually have to be deterred from exercising or enjoying ADA rights in order for the interference to exist actionable."[41] This is similar to the guidance regarding the retaliation clause.

The appellate case law addressing the interference clause in the ADA is somewhat express but the following case offers some guidance. The Ninth Circuit 2003 decision in Dark-brown v. Metropolis of Tucson[42] relied on the FHA case constabulary to determine the scope of the ADA interference clause rather than Championship Vii. The court'southward rationale was that Title 7 does not have an interference prohibition, simply FHA does and therefore the reliance on Title Vii retaliation standards was non advisable for ADA interference cases.

At that place was no effort by the Brown Court to define any of the terms used in that clause but the justices did rule that, "[f]or whatever else that provision may prohibit, it clearly makes it unlawful to "threaten…any individual in the exercise of enjoyment of…whatever right granted or protected by this statue."[43] The Courtroom continued by clarifying that threat lone is not sufficient to create ADA liability. An employee "must and then demonstrate that she has suffered 'a distinct and palpable injury' as a result or the threat."[44] The injury could be giving up an ADA right, another injury resulting from refusing to surrender the right, or even from the threat itself.[45] The employee argued that her rights were violated when she was questioned inappropriately about her disability and then threatened. However, the court ruled she did non testify evidence of a threat or that she had given upwards any right and so in that location was no violation of the interference clause.[46]

It is of import to annotation that the Title V interference provision covers a wider range of behaviors than the retaliation provision. Nevertheless, in both clauses, the law does not land that the individual has to be an "individual with disability" or "qualified" in society to bring a retaliation or interference complaint nether the ADA. An employee without disability who is retaliated confronting and/or faces interference because of complaint activity regarding workplace beliefs towards an private with a disability also has protections nether Title Five. A recent commune court instance filed in Mississippi by the EEOC on behalf of both an individual with a disability and her co-worker illustrates the protection from retaliation available to nondisabled individuals under the ADA. Both employees claimed their employer had retaliated against them because they had complained nearly disability bigotry nether the ADA Tile I and the EEOC investigators agreed. Because the agency's effort to accomplish a pre-litigation conciliation agreement with the company failed, the case has been filed in the Northern District of Mississippi and will be scheduled for trial.[47]

It is reported that retaliation claims are more often litigated than interference ones.[48] Even so, regardless of whether both or only one of the 2 clauses is the basis for a complaint, the question is what remedies are available for a successful employee. Title V addressed this simply by reference to Titles I, II and III of the ADA as outlined below.

Remedies Available

The remedies and procedures available under sections 12117 (Title I,) 12133 (Title Ii,) and 12188 (Title Three) of this title shall be bachelor to aggrieved persons for violations of subsections (a) and (b), with respect to subchapter I, subchapter 2 and subchapter Three, respectively. 42 UsC. §12203(c).

The remedies clause does not specify the remedies bachelor for retaliation and/or interference violations. Instead, information technology incorporates the specific provisions of Titles I, 2 and Three and states that the remedies available in each title are relevant to claims nether retaliation and/or interference. For employment related issues under Championship I, the powers, remedies, and procedures provided for in the Civil Rights Act of 1964 are available to enforcement under Title I.[49]

Title I enforcement powers include: investigation by the EEOC, a country comparable bureau, or litigation once the employee has received a "right-to-sue" letter from EEOC or the relevant state agency, authorizing litigation. The EEOC Enforcement Guidance states that the agency also has the dominance to seek temporary or preliminary relief before a terminal decision in an investigation when there is belief that information technology is necessary to prevent additional retaliation.[fifty] The Attorney Full general's Role can too take legal activeness against employers covered by ADA who accept a blueprint or practice of discrimination.

Congress adopted the enforcement (including remedies bachelor) provisions of the Civil Rights Deed for the ADA and therefore, the remedies available under that police are applied to employment discrimination under Title I.[51] The Ceremonious Rights Deed of 1964 allowed only equitable damages for successful employees; equitable damages include back and front pay or job reinstatement. The outcome of the equitable awards limitation meant that employees suing under Title VII had no correct to a jury trial. When Congress amended the Civil Rights Act in 1991 it added legal damages, which include compensatory and punitive damages, as available awards in Title Seven cases.[52] This addition meant that a right to a jury trial for the plaintiff would be bachelor.

The additional amercement also became available to individuals with disabilities past reference to the ADA in the Civil Rights Act. However, the amendments addressing remedies in the 1991 Civil Rights Act only added legal damages for the violation of rights under the ADA broadly.[53] The amendments did not specifically mention the right to legal amercement as a remedy to charges of retaliation or interference establish in Title V of the ADA.[54] This has acquired confusion in the courts every bit to whether legal damages are in fact available for a successful retaliation or interference claim nether Title I.

The EEOC Compliance Manual eight-21 published in 1998 endorsed the idea that individuals who experienced retaliation and/or interference were eligible for legal damages under Championship I of the ADA. A year afterwards the publication of this manual, the Fourth Circuit Court of Appeals weighed in on whether legal damages were in fact bachelor in Title I cases every bit a result of the amendments to the Civil Rights Human activity in 1991. In Baird 5. Rose, the court agreed with the EEOC estimation and held that remedies available nether Title I are specified in 42 U.s.a.C. §12117 and clearly "makes the remedies available nether Title Seven applicable to actions under the ADA."[55] Numerous other federal Circuit Courts of Appeal likewise allowed legal amercement and jury trials for claims of employment related retaliation and/or interference after the Civil Rights Act of 1991 amendments.[56]

Still, in 2004 the Seventh Excursion Court of Appeals ruled differently in Kramer v. Banc of America[57] based on their "close reading of the plain linguistic communication"[58] of the Civil Rights Act amendments that before courts had not done directly.[59] The justices acknowledged that the boosted damages for violations under the Civil Rights Act of 1991 were also bachelor for violations under Championship I.[lx] However, the 1991 amendments added legal damages for violations under Championship I generally but did not specifically address "retaliation and coercion (interference)" complaints in Title V. From the court'southward reading of the amendments, the expanded amercement available for employment under Title I were only for violations of rights such as reasonable accommodation, prohibitions against not existence hired when qualified, or disparate bear upon handling.[61] Therefore, legal damages were not available for the violations of retaliation and/or interference under Title V.

Kramer began a trend in the courts of applying a limited interpretation of the damages available under the ADA Championship V—i.due east., only equitable relief. Although there is a split in the courts related to whether compensatory and punitive damages (legal amercement) are available for retaliation and interference under Title 5 of the ADA, there is no legal debate that equitable damages are available for violations under the ADA.

Title I Regulations and Interference (Harassment) under Title I

The Championship I implementing regulations regarding retaliation and interference under Title 5 provide little boosted guidance in agreement the type of employer behavior that is discriminatory.[62] Withal, the language is somewhat different betwixt the statutory interference clause in Title Five and the same clause in the regulations implementing Title I. Specifically, the Title I regulations add harassment as an example of interference in employment, every bit below:[63]

(b) Compulsion, interference or intimidation – it is unlawful to coerce, intimidate, threaten, harass or interfere with whatsoever individual in the exercise or enjoyment of, or because that individual aided or encouraged whatsoever other individual in the exercise of, whatsoever right granted or protected by this part.[64]

The EEOC has published a definition of harassment applicable to all nondiscrimination laws that information technology enforces every bit follows:

Unwelcome conduct that is so frequent or severe that it objectively creates a hostile or offensive piece of work environment or results in a negative employment action (such as beingness fired or demoted). For case, assault, threats, insults or offensive graffiti may be illegal harassment.[65]

In addition, the agency has published guidelines to help employers and employees understand the term in disability discrimination as below.

Harassment tin can include, for example, offensive remarks about a person's inability. Although the law doesn't prohibit unproblematic teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that information technology creates a hostile or offensive piece of work environment or when it results in an agin employment decision (such as the victim being fired or demoted).[66]

The EEOC clarifies that the harasser can be the employee'due south supervisor, another supervisor, co-worker or fifty-fifty a customer or customer of the employer.[67] The consequence is not only who is doing the harassing simply also the surround that results from the harassing behavior and how that affects the employee. The EEOC guidance above seems to indicate there are diverse types of harassment including those that create a "hostile work surroundings" or that result in an adverse employment decision.

In add-on to filing a complaint under the Championship Five interference clause for harassment in the workplace, an private could claim harassment in the workplace nether the prohibition on discrimination in the "terms, conditions, and privileges of employment"[68] under Championship I. Whether a complaint of harassment in the workplace is based on a violation of Title I or Championship V, few individuals accept been successful in disarming the courts that he or she had experienced harassment on the basis of disability under either Title. The main bulwark has been that the aforementioned level of proof required to bear witness a "hostile work surround" under Championship Vii of the Civil Rights Deed[69] has been practical to disability harassment.[70] To prove hostile work environment nether Championship 7, the beliefs must be astringent and pervasive. This is a very heavy burden to meet and difficult for plaintiffs to bear witness.

To complicate the analysis of disability harassment, the EEOC has taken the position that the proof necessary for a "retaliatory harassment" claim under the ADA's retaliation prohibition in Championship V is unlike from a merits of "hostile piece of work environment." A hostile work surround merits under nondiscrimination police force must meet the "astringent and persuasive" standard equally above only a retaliatory harassment claim only requires acquit that deters protected activity in a given context.[71]

Despite the difficulties in proving harassment on the basis of inability in the workplace, increasing numbers of courts have allowed a claim under the ADA that the employer created a "hostile work environment."[72] Fox v. Costco Wholesale Corp.[73] is a recent ADA decision from the Second Circuit on workplace harassment that illustrates the astringent and pervasive standard in disability harassment. Mr. Fox sued Costco for hostile work environment, disparate treatment, failure to accommodate, and retaliation. The district court ruled for Costco on a summary judgment motility, dismissing all claims, and Mr. Fox appealed. Specifically on the hostile work surroundings claim, the district court was not convinced that the harassing beliefs was severe and pervasive.

However, on appeal, the Second Excursion Courtroom found sufficient evidence for the hostile piece of work surround merits to go forrad and remanded the example to the district court for trial. The Circuit Court made it clear that the intent of the ADA supported a claim of harassment on the basis of disability under the prohibition against discrimination on the basis of disability in regard to "terms, atmospheric condition, and privileges of employment."[74] Farther, the court held that the severe and pervasive standard must exist considered as to whether it was "objectively abusive" and sufficient to effect or change an employee'due south working conditions. The bear witness presented in this case included joking about the employee's disability, mimicking his behaviors, and degrading personal comments. These examples were sufficient to convince the 2nd Circuit Courtroom that Costco employees were mocking the employee'due south impairments which raised an issue of fact as to whether the workplace environs was "considerately hostile."[75] Farther, the court weighed the fact that Costco supervision had been aware of the behavior and did non finish information technology from occurring. The decision seemed to suggest that joking about an individual's characteristics that are role of the inability is per se abusive and, if frequent plenty, may well satisfy the severe and pervasive standard required for the hostile work surround merits, as it did in this example.

Disability harassment nether Title I is a developing area of the law. Numerous retaliation and/or interference cases also include evidence of hurtful, stigmatizing, and/or cruel verbal or physical mimicking of an individual's impairment that creates a hostile workplace surround. When that type of harassment rises above elementary teasing and continues, the courts are increasingly finding an ADA violation. Depending on the facts of a specific case, an private might bring a complaint of harassment as a violation of dissimilar treatment under the "terms and conditions" language of Title I. The private might as well bring a complaint under the interference clause of Championship V arguing a hostile piece of work environment. Finally, the EEOC has also recognized "retaliatory harassment" as a prohibition under Title V which the agency suggests does not require proof of the astringent and pervasive conduct required nether a hostile work environment claim based on the "terms and conditions" language in Title I.

Although the regulations implementing Championship I do non add significantly to the retaliation and interference clauses, the EEOC has issued extensive guidance on retaliation and interference in employment, including harassment. The web-based resource and electronic locations are outlined in the final section of this newspaper.

Proving Retaliation and/or Interference under ADA Title I

Numerous equal employment opportunity federal laws include anti-retaliation clauses modeled later the Championship VII Civil Rights Act of 1964 every bit mentioned earlier. Like Championship Vii, an individual charging an employer with retaliation and/or interference in the workplace under Title I of the ADA must showtime show that three elements are satisfied:

The private was engaged in prior protected activities and/or opposition to what a reasonable person would believe was ADA discrimination or participated in an ADA proceeding;
The employer took a materially agin employment activeness subsequently, or contemporaneously with, the opposition; and
There is a causal connexion between these two events, specifically the protected activity and the adverse activeness.[76]

Protected Activity

An individual does not take to be "right" that he or she was engaged in protected activities to satisfy the first element. Just a reasonable and good faith belief that he or she was engaged in protected activities is required. For example, a person may believe he or she meets the statutory definition of disability under the ADA and request a reasonable accommodation. Even if the individual is not disabled under the ADA definition or their request for an accommodation is not ultimately determined to be reasonable, the individual has a correct to be free from retaliation or interference if he or she acted reasonably and in adept religion.

Materially Agin Employment Action

Evidence of the second element, materially agin employment activeness, tin include obvious actions such equally firing a person from their chore. However, it too includes other actions that a "reasonable employee" would consider materially adverse in the context and might dissuade the person from filing a complaint or otherwise opposing the employer'due south action. The EEOC has taken a wide view of materially agin action and provided examples of both piece of work related deportment and those exterior the workplace. In determining the "reasonable employee" standard, consideration must be given to the specific context of the case. The EEOC has stated that no action is e'er categorically not "significant enough to deter protected activity" because that would violate the Supreme Court requirement for content specific assay of materially adverse.[77]

Causation

The concluding chemical element requires that the plaintiff evidence that the employer's adverse action was in response to the individual's protected activity. This connexion between the adverse activity and the protected activity is referred to as "causation." Evidence of a causal connection includes evidence of the temporal proximity[78] between the protected activity and the alleged retaliatory action or design of antagonism.[79] The EEOC Enforcement Guidance provides numerous examples of the type of evidence that can help support the causation standard. These include evidence of suspicious timing, exact or written statements, comparative evidence that a similarly situated employee was treated differently, falsity of the employer'south proffered reason for the agin activeness, or any other pieces of testify which, when viewed together, may allow an inference of retaliatory intent.[80]

In that location are two causation standards applied under federal nondiscrimination police force; these are the "just-for" and the "motiving factor"[81] standards. The debate under the ADA has been whether the law requires the "but-for" causation or allows the "motiving factor" standard.[82] The "simply-for" causation standard requires that an employee prove that the agin activity by the employer was depended on an impermissible factor and that "but-for" the impermissible factor, the adverse activeness would non have occurred. Impermissible factors are unlawful ones; an example would be refusal to provide a reasonable accommodation nether the ADA. The "motiving gene" standard only requires the impermissible cistron be one of potentially many factors that led to the agin action. The "but-for" causation standard is harder to evidence than the "motiving factor" standard as discussed beneath.

The Usa Supreme Courtroom has addressed the appropriate causation standard for retaliation and interference several times nether Title VII and the ADEA, but has not addressed the issue specifically for the ADA. In Price Waterhouse v. Hopkins,[83] the Court was asked to decide the advisable causation standard under Title VII in a case arguing sex discrimination in an employment context. The Justices held that due to the language of Title Vii prohibiting discrimination "considering of" the sexual practice of the individual, and not "solely because of" the sex of the individual, "motiving factor" was the appropriate standard. Congress codified that estimation in the Civil Rights Act amendments in 1991.[84] When the EEOC Guidance Manual was released in 1998, information technology referenced the Championship VII of the Civil Rights Act amendments in 1991 to state that the causation standard was "motivating factor" under that law, and therefore, "motivating factor" would likewise be the standard under the ADA.

The Supreme Courtroom revisited the issue 10 years later in Gross 5. FBL Fiscal Services, Inc.[85] The issue before the Court was whether the causation standard was also "motivating factor" nether the ADEA considering it did non included any language in the police force itself regarding motiving factor. The ADEA does include the "because of" language similar to the Civil Rights Human action. However, based on a textual assay of the ADEA, the Justices held that because the police force did not include a motiving cistron provision, Congress must take been intentional in not amending the ADEA to clarify that motiving gene was the standard, as it did with the Civil Rights Act. Therefore, the "but-for" standard would apply to ADEA cases. According to Gross, "but-for" causation under the ADEA means that the employer must use age as a reason for the adverse action but it does not take to be the just reason. If the employer would have made the same adverse decision without consideration of age, then age was not the "but-for" cause.[86]

However, post-obit Hopkins and Gross, there was some debate as to whether the "motivating gene" standard modify was effective for violations of retaliation or only for violations of condition complaints.[87] The Supreme Courtroom weighed in on this result in Academy of Texas Southwestern Medical Heart v. Nassar,[88] a case litigated nether Title VII in 2013.

The Nassar majority based its decision on the appropriate causation standard for retaliation on the specific wording of the Civil Rights Act. First, the Courtroom held that Congress had written into the police that "motiving factor" was the factor for status-based bigotry nether the 1991 amendments to the Ceremonious Rights Deed but had non done so specifically for the retaliation provision. 2d, the Court compared the ADEA statutory language prohibiting discrimination because of age (status discrimination) with the Title VII retaliation provision. The Justices found no difference in the language betwixt these two provisions and therefore, extended the Gross holding that "but-for" was the appropriate standard in retaliation complaints under Championship VII. In add-on, the majority stated that the stricter standard was required because of the increasing numbers of retaliation claims filed.[89] Co-ordinate to the bulk, if the standard were lowered to "motiving gene" for retaliation claims, it would atomic number 82 to an increased number of frivolous lawsuits and overload the courts.[90]

As noted by the Nassar Court, the EEOC Guidance Manual published in 1998 did land that the "motiving factor" standard was applicable to all federal nondiscrimination laws it enforced.[91] The Court addressed that guidance and was disquisitional of the lack of thoroughness of the EEOC in its discussion of the difference between the "status based discrimination" linguistic communication of Championship VII and the anti-retaliation sections as justification for using the "motiving factor" standard. Ultimately, the Justices concluded that the EEOC's guidance lacked the "persuasive force" necessary to receive deference.[92] Even so, the Nassar opinion seemed to leave the door open for the EEOC to develop stronger guidance and/or regulations to clarify the causation standard under federal nondiscrimination laws.[93]

Nassar was a very close decision with iv Justices in the minority. The very critical dissent was authored by Justice Ruth Bader Ginsburg. Her first statement was that the intent of the specific incorporation of the "mixed motive" or "motiving factor" standard in the Civil Rights Deed amendments of 1991 was to aggrandize anti-discrimination protection. The "mixed motive" standard was intended to provide for "additional protections confronting unlawful bigotry in employment" and to "reply to a number of decisions past [the] Court that sharply cut dorsum on the scope and effectiveness of antidiscrimination laws."[94] 2d, Justice Ginsburg idea that the Court should apply the same causation standard to both status and retaliation claims nether Title VII. Because status claims of discrimination explicitly required the "mixed motive" standard under the Ceremonious Rights Act, she would besides employ that standard to retaliation claims. Finally, she was concerned that the "merely-for" standard in employment discrimination cases cannot address the mind-related characteristics that constitute motive.[95] She argued that for retaliation claims, mixed methods is the only standard that makes sense in lieu of getting into the mind of the employer to make up one's mind the motive behind the adverse action.

In response to the critique from the Supreme Court Majority, the EEOC reversed its earlier position in the revised EEOC Enforcement Guidance on Retaliation and Related Issues released three years after Nassar. In its updated guidance, the EEOC stated that for the individual sector and state and local governments, the appropriate causation standard for retaliation is "but-for."[96] The guidance clarifies that under this standard retaliation does non have to be the "sole cause" of the action—i.due east., it tin can be one of many reasons an employer takes adverse action against an employee.[97]

The Supreme Court in Nassar clearly stated that the "but-for" standard must be applied in Title VII retaliation cases and EEOC guidance was updated to reflect that. However, the federal Circuit Courts have been split in whether to apply the simply-for or motiving gene standard in ADA cases.[98] The Quaternary and Sixth Circuits apply the "but-for" causation standard under the ADA equally do the Offset, Seventh, and Eleventh Circuits with some cases in those circuits decided earlier Nassar.[99] The "motivating gene" standard has been adopted in the Fifth, 8th, and Ninth Circuits based on these courts reading of the ADA and the EEOC guidance prior to Nassar.[100] Based on the updated EEOC guidance, and the many Circuits post-obit Nassar for ADA retaliation cases, information technology seems unlikely that the "motivating factor" standard volition keep to be practical unless in that location are statutory or regulatory changes to the ADA.

Despite the Nassar conclusion, updated EEOC Enforcement Guidance, and the many federal circuits following Nassar, there take been proposals to reconsider the causation standard for the ADA. The statement is based primarily on the 2008 ADA amendments that changed the language in the original ADA from prohibiting discrimination "because of" a inability to prohibiting bigotry "on the basis of disability." The argument is that the amended ADA language prohibiting bigotry on the footing of disability allows for the "motiving cistron" standard. Based on this, equally well as legislative history, there have been calls for Congress or the Supreme Court to clarify that the justification for the "simply-for" causation standard announced in Nassar under Championship VII is not applicable to the amended language of the ADA.[101] Whether the Congress or the courts will reconsider the causation standard for retaliation and interference under the ADA remains to be seen.

Burden of Proof

An private's burden of proof required to prove Title I retaliation is preponderance of the evidence that he or she was engaged in a protected activity to oppose ADA discrimination and the employer took an agin action that was causally related to the protected activeness. Preponderance of the testify is defined every bit more likely than not that retaliation has occurred. If the individual is successful in meeting this burden, then the burden shifts to the employer who must articulate a legitimate, non-retaliatory reason for the adverse action—e.g., termination of employment.[102] If the employer is successful in presenting a legitimate reason for the adverse action, so the private tin respond with arguments that show the employer's reasons were pretextual and that the existent reason was retaliation. One court characterized this as the "discriminatory reasons more likely than not motivated the employer or that the employer'south reasons are unworthy of credence."[103]

A recent study of retaliation cases under Championship I since the ADA 2008 amendments found that the iii elements and the burden of proof required to evidence retaliation are the basis for many courts to rule in favor of employers.[104] The author of this study reported that courts often utilise the "reasonable conventionalities" standard to hold that the employee in the case did not or could not have reasonably believed that their requested adaptation was reasonable under the ADA. Courts are also finding that the "adverse action" claimed past an employee was not sufficiently adverse – i.e., it was too pocket-size or trivial. Regarding the third element, courts often found that the proximity between the protected activity and the adverse action was too distant to evidence a causal relationship necessary to satisfy the "causation" standard. Post-ADA 2008 amendments, courts have regularly held that plaintiffs failed to prove that an employer's stated reason for the adverse action was pretextual.[105]

V. Resources for Additional Data

The Ceremonious Rights Human action has raised sensation of the discriminatory practices and attitudes towards employees considering of their race, color, organized religion, sex or national origin, and required changes in the workplace. The ADA is designed to exercise the aforementioned concerning discrimination on the ground of disability by protecting employees with disabilities in exercising their rights under Championship I such as asking for reasonable accommodation. It also ensures employees have a right to be gratuitous from retaliation and/or interference, including a workplace gratuitous of harassment, in exercising those rights under Title V.

The legal elements and standards required to testify retaliation and/or interference, including hostile piece of work environment, under the ADA are complicated. Perhaps because of the lack of helpful regulatory or statutory language and the coaction between the ADA and Title Seven of the Civil Rights Act and the ADEA, the EEOC has published extensive guidance for employers. These resource include many workplace examples to help illustrate and ascertain the legal standards. In addition, in an effort to help employers exist proactive, there are "promising practices" and other recommendations employers tin can take to minimize the likelihood of retaliation and/or interference violations.

Although retaliation and/or interference in employment are hard claims to prove in court, the EEOC has been actively pursuing them, resulting in recent settlement agreements and court decisions favorable to employees. Summaries of the EEOC settlements are helpful in agreement workplace behaviors that constitute retaliation and/or interference. These settlements are bachelor in a searchable database on the EEOC website.

Employees and employers both have access to the EEOC for technical assistance regarding any ADA Title I issue. For retaliation and/or interference, the resource are both generic to all federal nondiscrimination laws that the EEOC enforces as well as specific ones related to Championship I. The EEOC guidelines and settlements equally well as court decisions are valuable resources on nondiscrimination broadly and ADA Title I specifically.

The following list includes the web based EEOC resource referenced in this document as well every bit additional ones that may exist of interest. The link to the EEOC settlement agreements and summaries of litigation is also included.

EEOC Resources

Inability Bigotry: https://www.eeoc.gov/laws/types/disability.cfm

Enforcement Guidance on Retaliation and Related Issues: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors: https://www.eeoc.gov/policy/docs/harassment.html

Questions and Answers: Enforcement Guidance on Retaliation and Related Problems: https://world wide web.eeoc.gov/laws/guidance/retaliation-qa.cfm

Minor Business Fact Sheet: Retaliation and Related Issues: https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm

Small Business Resource Center: https://world wide web.eeoc.gov/employers/smallbusiness/index.cfm

Case Settlements (Newsroom – searchable database): https://www.eeoc.gov/eeoc/newsroom/index.cfm

Content was developed past the ADA Noesis Translation Center and is based on professional consensus of ADA experts and the ADA National Network.

ADA Knowledge Translation Center

http://adata.org/ADAKTC

The contents of this factsheet were developed under a grant from the National Institute on Disability, Independent Living, and Rehabilitation Inquiry (NIDILRR grant number 90DP0086). NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this factsheet do not necessarily represent the policy of NIDILRR, ACL, HHS, and you should not assume endorsement by the Federal Government.

© Copyright 2020 ADA National Network. All Rights Reserved.
May exist reproduced and distributed freely with attribution to ADA National Network (world wide web.adata.org).

[1] The terms used are somewhat different in the Title II and Three; see Title II: §35.134 Retaliation or compulsion and Title III: §36.206 Retaliation or compulsion.

[ii] Retaliation – Making information technology Personal at https://eeoc.gov/laws/types/retaliation_considerations.cfm

[iii] Craig Robert Senn. Redefining Protected Opposition Activity in Employment Related Cases. 37 Cardozo Fifty. Rev 2035, 2040 (2016).

[4] https://eeoc.gov/laws/types/retaliation_considerations.f=cfm.

[5] Id.

[half dozen] EEOC Resources on Disability Discrimination at https://www.eeoc.gov/laws/types/disability.cfm

[seven] Nicole B. Porter. Disabling ADA: Retaliation Claims, 19 Nev. L. J. 823 (Leap 2019).

[8]Other federal nondiscrimination statutes that protect individuals from retaliation, and in some cases interference, when exercising their rights include the Fair Labor Standards Act (FLSA), Equal Pay Human activity (EPA), Occupational Prophylactic and Health Deed (OSHA), and Genetic Information Nondiscrimination Act (GINA).

[9] 42 U.s.a.C. §2000e(2)(a).

[10] 42 The statesC. §2000e-three(a)

[eleven] 29 United statesC. §621(b) (2012).

[12] 29 The statesC. §630(b)-(d). Note: public employers added in 1974.

[13] 29 United statesC. §623(a)(one).

[fourteen] 29 U.s.C. §623(d) (2012).

[fifteen] 42 United states of americaC. §12101(b)(1).

[16] Relevant issues include state immunity, regulations past the Architectural and Transportation Barriers Compliance Lath, attorney's fees, and technical help. Come across 42 United states of americaC. §12201-12213.

[17] Pub. Fifty. 101–336, championship V, §503, July 26, 1990, 104 Stat. 370.

[18] EEOC Enforcement Guidance on Retaliation and Related Issues. No. 915.004 (August 25, 2016) at 4.

https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

[19] Id. at six.

[20] Id. at five.

[21] See Section 5. Resources of this paper.

[22] 548 U.Southward. 53 (2006).

[23] Id. at 64, citing Berry v. Stevinson Chevrolet, 74 F.3d. 980 (CA10 1996).

[24] Id. 68, citing Rochon five. Gonzales, 438 F.3d 1211 (DDC 2006).

[25] Id. at 69.

[26] Id.

[27] EEOC Enforcement Guidance at 8.

[28] EEOC Enforcement Guidance at 11.

[29] EEOC Questions & Answers: Enforcement Guidance on Retaliation and Related Issues, Question 8. Italics in original.

[thirty] Id.

[31] Id.

[32] Id.

[33] Id.

[34] 614 F.3d 845 (8^th Cir. 2010).

[35] 420 F.3d 658 (seven^th Cir. 2005).

[36] 42 U.s.a.C. §12203(a) is generally known as the retaliation prohibition clause and 42 United statesC. §12203(b) as the interference prohibition clause. EEOC Enforcement Guidance.

[37] EEOC Enforcement Guidance at 22.

[38] EEOC Enforcement Guidance at xix.

[39] Id. at 22.

[forty] EEOC Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, Question 19.

[41] Id.

[42] 336 F.3d. 1181 (ix^th Cir. 2003).

[43] Id. 1193 (italics in original).

[44] Id.

[45] The Dark-brown Court cited Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112, 1124 (9^th Cir. 2001).

[46] Frakes v. Peoria School District No. 150, 872 F.3d 545 (seven^th Cir. 2017). Annotation: this case was litigated under Section 504 of the Rehabilitation Human action but practical the ADA law on interference.

[47] EEOC v. Valley Tool, Civil Action No. 3:19-cv-00140 and EEOC v. Valley Tool, Civil Activeness No. 3:19-cv-00141

[48] Nicole B. Porter. Disabling ADA: Retaliation Claims. xix Nev. L. J. 823, 827 (Leap 2019).

[49] 42 U.S.C. §2000e-four-nine.

[50] EEOC Enforcement Guidance at 24.

[51] Id.

[52] Compensatory damages compensate for nonpecuniary damages including humiliation, pain and suffering, etc. Punitive damages are bachelor when the plaintiff can establish that the defendant engaged in discrimination with malice or reckless indifference to the rights of the plaintiff. Compensatory and punitive damages are capped at amounts depending on the defendant'south number of employees. In addition, in that location is a "skillful religion" exception to the award of amercement for defendants found to have failed to provide reasonable accommodation. See https://world wide web.everycrseport.com/reports/R43845.html#

[53] Section 1981 a(a)2 of Ceremonious Rights Act 1991.

[54] 42 United states of americaC. §12203.

[55] 192 F.3d 462 at 471-2 (4^thursday Cir. 1999).

[56] Shellengerger v. Summit Bancorp, Inc. 318 F.3d 183 (3d Cir. 2003); Stafne v. Unicare Homes, 266 F.3d 771 (8^thursday Cir. 2001); Muller v. Costello, 187 F.3d 298 (2^nd Cir. 1999).

[57] Kramer v. Banc of America, 355 F.3d 961 (7^Th Cir. 2004)

[58] Id. at 965

[59] Katie Grand. Mueting. A Example for Allowing Victims of ADA Retaliation and Coercion in Employment to Recover Legal Amercement, 92 Iowa L. Rev 1493 (May 2007).

[60] Id.

[61] Disparate treatment is considered intentional discrimination and is assorted with disparate impact which is considered unintentional bigotry that results when policies or practices that appear to be neutral have a disproportionate impact on a protected group.

[62] See 29 C.F.R. §1630.12 and 28 C.F.R. §35.134, 36.206.

[63] EEOC Enforcement Guidance footnote 177. Harassment is not a term used in the Championship I statute although it is in Title III.

[64] 29 C.F.R. §1630.12(b). Italics added.

[65] Glossary bachelor at https://world wide web.eeoc.gov/employers/smallbusiness/glossary.cfm#harassment

[66] Disability Discrimination available at https://www1.eeoc.gov//laws/types/disability.cfm?renderforprint=1

[67] Id.

[68] 42 U.South.C. §12112(a).

[69] Encounter likewise Championship 9, which prohibits discrimination on the footing of sex.

[seventy] Run across Mark Weber. Workplace Harassment Claims nether the Americans with Disabilities Act: A New Estimation, 14 Stan. L. Political leader'y Rev 241 (2003).

[71] EEOC Enforcement Guidance at 17.

[72] Fox v. Costco Wholesale Corp., 918 F.3d 65 (2^nd Cir. 2019); Lanman five. Johnson Cty., 393 1151 (x^th Cir. 2004); Shaver 5. Indep. Stave Co., 350 F.3d 716 (8^th Cir. 2003); Flowers v. Southward. Reg'l Physician Servs., 247 F.3d 229 (5^thursday Cir. 2001); Play a trick on v. Gen. Motors Corp., 247 F.3d 169 (4^th Circ. 2001).

[73] Fox v. Costco Wholesale Corp., 918 F.3d 65 (2^nd Cir. 2019).

[74] 42 U.S.C. §12112(a).

[75] Fox v. Costco Wholesale Corp., 918 F.3d 65 at 76 (ii^nd Cir. 2019).

[76] EEOC Enforcement Guidance at 5.

[77] EEOC Enforcement Guidance at 15, references Burlington Northern & Santa Iron Railway Co. 5. White, 548 U.South. 53 (2006).

[78] Temporal proximity refers to how close in fourth dimension events occur

[79] Lauren Westward. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (iii^rd Cir. 2007). Note: case litigated under Idea.

[lxxx] See EEOC Enforcement Guidance at 19, cites Ortiz v. Werner Enteres, Inc., No 15-2574, 2016 WL 4411434 (7^thursday Cir 2016).

[81] Besides referred to every bit the "mixed motive" standard.

[82] Christian J. Meyers. Untangling Causation Nether the Americans with Disabilities Act: Is it Just-For Causation or the Motivating Cistron Standard? 38 Rev. Litig. 95 (Autumn 2018).

[83] 490 U.S. 228 (1989).

[84] 42 U.S.C. §2000e-2(m).

[85] 557 U.S. 167 (2009).

[86] Id. at 176.

[87] Status claims under ADA are violations of discrimination on the basis of disability under Titles I, Two, and Iii.

[88] Academy of Texas Southwestern Medical Center five. Nassar, 570 U.South. 338 (2013).

[89] Id. at 358.

[ninety] Id.

[91] Id. at 360.

[92] Id. at 361.

[93] August Johannsen. Mitigating the Touch on of Title Vii's New Retaliation Standard: the Americans with Disabilities Act subsequently University of Texas Southwestern Medical Center v. Nassar. 56 Wm. & Mary 50. Rev. 301 (Oct 2014).

[94] Nassar at 369 quoting H.R. Rep. No 102-40, pt 2, pp ii-iv.

[95] Id. at 385 quoting Gross v. FBL Financial Services, Inc., 557 U.S. 167 at 190 Breyer Dissent.

[96] The causation standard remains "motiving factor" in federal employment nether Championship Vii and ADEA cases under the reissued guidance. EEOC Enforcement Guidance at 18.

[97] EEOC Enforcement Guidance at 18.

[98] Christian J. Myers. Untangling Causation Under the Americans with Disabilities Act: Is it Simply-For Causation or the Motiving Factor Standard? 38 Rev. Litig. 95 (Fall 2018).Author argues that the standard nether the amended ADA should be "motivating factor" for retaliation cases.

[99] Gentry v. E.Due west. Partners Club Mgmt, Co., Inc., 816 F.3d 228 (4^th Cir. 2016); Palmquist v. Shinseki, 689 F.3d 66 (1^st Cir. 2012); Lewis Five. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6^th Cir. 2012). Serwatka 5. Rockwell Automation, Inc., 591 F.3d 957 (7^thursday Circ. 2010); McNely 5. Ocala Star-Banner Corp., 99 F.3d 1068 (11^th Cir. 1996).

[100] Dillard v. City of Austin, 837 F.3d 557 (v^thursday Cir. 2016); Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537 (8^th Cir. 2018); Pillips v. Victor Cmty. Support Servs., Inc., 692 F.App'10 920 (9^th Cir. 2017).

[101] Christian J. Myers. Untangling Causation Under the Americans with Disabilities Act: Is information technology But-For Causation or the Motiving Gene Standard? 38 Rev. Litig. 95 at 130. (Fall 2018).

[102] EEOC Questions and Answers: Enforcement Guidance on Retaliation and Related Bug, Question fourteen.

[103] Cisneros v. Wilson, 226 F.3d 1113 (x^th Cir. 2000).

[104] Nicole Porter. Disabling ADA Retaliation Claims, 19 Nev. L. J. 823 (Leap 2019).

[105] Id. at 824.

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Source: https://adata.org/legal_brief/legal-brief-protection-retaliation