ADA Guidelines: retaliating for assertion of ADA rights

by on December 17, 2008 · 0 Comment POSTED IN: HR Info Center

ADA Compliance and the timing of discipline is essential to win ADA lawsuits.

The Americans with Disabilities Act, like other anti-discrimination laws, prohibits not only discrimination against a certain kind of people – disabled ones, in this case – but also any attempt by an employer to punish employees for standing up for their ADA disability rights.
This is an admirable intention, and no doubt many justified ADA lawsuits have been made against employers who engaged in such illegal retaliation.
But the ADA’s anti-retaliation provision has also given birth to some monsters over the years – cases where even the courts seem to be holding their noses while applying the law.

Here’s how one of these unfortunate cases went down, costing an unwary employer time, aggravation, legal fees and, most likely, a settlement.

“You’re fired,” supervisor Ophelia Durrett told Tammy Rae Benson. “We’ve put up with your verbal and physical abuse of your co-workers for years, and everybody’s had it. When you told Barb Lyons she was a *$&%^, that was the straw that broke the camel’s back. Barb has always been one of your biggest defenders, by the way. Anyway, I want you gone at the end of the day.”

“I told you my anti-depressants have a strange effect on me,” Tammy Rae said. “It’s not fair to fire me because of a reaction to medication.”

“You were put on warning six months ago after you kicked Ray Taylor in the shin,” Ophelia said. “Six months should have been long enough to adjust your medication so you could comply.”

“Isn’t there another reason why you’re doing this?” Tammy Rae asked.

“No,” Ophelia said bluntly. “That’s the whole truth and nothing but.”

“Because I just wondered whether the fact that I just filed a disability discrimination complaint with the EEOC might have something to do with this,” Tammy Rae asked with an innocent gaze.

Tammy Rae sued the company for retaliating against her after she filed her EEOC charge. Surprisingly, the court said she had a case, and refused to dismiss her suit.

The court almost apologized for its ruling, but said the law was the law. “It is not lost on us that some might view our holding today as punishing (the employer) for showing too much patience” with Tammy Rae, the court said. If the company hadn’t been so patient, and had fired her when she kicked Ray Taylor, for example, she would have had no case.

But the fact that Tammy Rae was actually fired for less severe misbehavior – a verbal assault compared with a physical one – and the timing of the termination, just three weeks after her EEOC complaint, made it impossible for the court to dismiss the case.
(Cantrell v. Nissan North America)

How the supervisor slipped up:
Ophelia probably should have come down on Tammy Rae much earlier. The result of the case shows what a supervisor gets for being too patient with a troublemaker. But once Ophelia did decide to act, she could have waited a decent interval after the filing of Tammy Rae’s disability discrimination complaint.

ADA Guidelines for managers:
Whenever you’re dealing with discrimination laws – whether on sex, race, religion, age, or disability– it’s always better not to discipline somebody shortly after they make a complaint, if you can help it.

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