Retaliation and Coercion

Statutes
Regulations
Case Law

Statute:

42 U.S.C. § 12203 - Prohibition against retaliation and coercion

(a) Retaliation - 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.

(b) Interference, coercion, or intimidation - It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual 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 exercise or enjoyment of, any right granted or protected by this chapter.

(c) Remedies and procedures - The remedies and procedures available under sections 12117, 12133, and 12188 of this title shall be available to aggrieved persons for violations of subsections (a) and (b) of this section, with respect to subchapter I, subchapter II and subchapter III of this chapter, respectively.

Regulations:

28 C.F.R. § 35.134 - Retaliation or coercion

(a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part.

(b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual 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 exercise or enjoyment of, any right granted or protected by the Act or this part.

28 C.F.R. § 36.206 - Retaliation or coercion

(a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part.

(b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual 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 exercise or enjoyment of, any right granted or protected by the Act or this part.

(c) Illustrations of conduct prohibited by this section include, but are not limited to:

(1) Coercing an individual to deny or limit the benefits, services, or advantages to which he or she is entitled under the Act or this part;

(2) Threatening, intimidating, or interfering with an individual with a disability who is seeking to obtain or use the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation;

(3) Intimidating or threatening any person because that person is assisting or encouraging an individual or group entitled to claim the rights granted or protected by the Act or this part to exercise those rights; or

(4) Retaliating against any person because that person has participated in any investigation or action to enforce the Act or this part.

29 C.F.R. § 1630.12 - Retaliation or coercion

a) Retaliation - It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by this part or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision contained in this part.

(b) Coercion, interference or intimidation - It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by this part.

Case Law:

Fogleman v. Mercy Hospital Inc., 283 F.3d 561 (3rd Cir. 2002).

A hospital employee sued his employer for firing him in retaliation for his father having sued the hospital for disability and age discrimination. He also claimed that Mercy had fired him because it thought that he had assisted his father in the lawsuit (even though he didn't).

The ADA has an anti-retaliation provision that forbids an employer to "coerce, intimidate, threaten or interfere with any individual" from exercising rights protected under the act. Firing a close relative could have a coercive effect on employees engaging a protected activity. Therefore, a person may be able to assert a third-party retaliation claim under § 12203(b).

The statutes forbid an employer from taking adverse action against an employee for discriminatory reasons. It doesn't matter if the factual basis for his animus was correct. As long as the employer's intent was discriminatory, the retaliation was actionable.

Weeks v. Harden Manufacturing Corp., 291 F.3d 1307 (11th Cir. 2002).

Manufacturer workers claimed that their employer had violated Title VII, the ADEA, and the ADA by firing them in retaliation for refusing to sign an agreement that mandated the resolution of employment discrimination claims through arbitration.

In order to prove retaliation under those laws, a plaintiff must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression.

To establish that a plaintiff engaged in statutorily protected expression, a plaintiff must show that she had a good faith, reasonable belief that the employer was engaged in unlawful employment practices. A plaintiff must not only show that he believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.

The court reasoned that requiring arbitration of federal statute disputes is not an unlawful employment practice under those laws. Numerous court cases have endorsed the use of arbitration in resolving federal laws. The employees could not claim ignorance of the law as support for their beliefs being objectively reasonable.

Shaver v. Independent Stave Co., 350 F.3d 716 (8th Cir. 2003).

While applying for jobs, plaintiff used former supervisor as reference even though he had a lawsuit going against his former employer. The supervisor gave negative references and the plaintiff was not hired for any of those jobs. The district court concluded that Mr. Shaver was attempting to manufacture a retaliation claim by baiting his former supervisor into giving negative references.
There is no "manufactured claim" exception to the retaliation provision of the ADA. Rather, the law focuses exclusively on the conduct of the alleged retaliator in determining whether the aggrieved plaintiff has a claim.
Negative job references can constitute adverse, retaliatory action.

Doebele v. Sprint/United Management Co., 342 F.3d 1117 (10th Cir. 2003).

A plaintiff's prima facie case, plus evidence that the defendant's reasons for the adverse action were pretextual, may be adequate to defeat a motion for summary judgment.
The plaintiff need not show both that the defendant's reasons were a pretext and that the real reason was discrimination--the fact of pretext alone may allow the inference of discrimination.

Heisler v. Metropolitan Council, 339 F.3d 622 (8th Cir, 2003).

'An individual who is adjudged not to be a 'qualified individual with a disability' may still pursue a retaliation claim under the ADA," as long as she had a good faith belief that the requested accommodation was appropriate.

Kramer v. Banc of America Securities, LLC, __ F. 3d __ (7th Cir. January 20, 2004).

"The 1991 Civil Rights Act does not expand the remedies available to a party bringing an ADA retaliation claim against an employer and therefore compensatory and punitive damages are not available."

Shotz v. City Of Plantation, Fla., ___F.3d ___, (11th Cir. Sept. 8, 2003).

As a favour to a city councilman, an inspector did an ADA survey of city building. The city responded by hiring a private investigator to do a background check on the inspector and released the information to the public.
An government official may be sued privately in his or her personal capacity (rather than official) for violating § 12203 in the public services context.
As a general rule, a plaintiff must demonstrate that a reasonable person in his position would view the action in question as adverse.
Gathering sensitive and highly personal information which is irrelevant to an assessment of either the position or credibility of a citizen who is attempting to galvanize local government into satisfying its obligations under the ADA... and then releasing that information to the public, for whatever reason, is hardly incidental to the normal government-citizen relationship.