While the Americans with Disabilities Act itself prohibits retaliation, the newest EEOC guidance also contains a provision prohibiting “interference” with the exercise of ADA rights that is broader than the anti-retaliation provision. The interference provision, in general, protects any individual who is subjected to coercion, threats, intimidation, or interference with respect to ADA rights. Some examples of “interference” in the EEOC guidelines include:
- Example: “After a lengthy interactive process, an employee with multiple sclerosis is granted a change in schedule as an accommodation. When her condition subsequently worsens, she requests additional accommodations, including telecommuting on days when her symptoms flare up and prevent her from walking. The employer has a policy that prohibits telework. When her supervisor consults human resources, he is advised that the ADA may require making an exception to the usual policy as a reasonable accommodation, unless it would pose an undue hardship. Instead of proceeding with the interactive process, the supervisor tells the employee that if she withdraws her request for accommodation, he will informally allow her to work from home one day per week, but that, if she persists with her formal accommodation request, he will tell human resources that her job cannot be performed from home. The supervisor’s actions constitute interference in violation of the ADA.”
- Example: “When reviewing medical information received in support of an employee’s request for accommodation of her depression, the employer learns that, although the employee’s physician had previously prescribed a medication that might eliminate the need for the requested accommodation, the employee chose not to take the medication because of its side effects. The employer advises the employee that if she does not try the medication first, he will not consider the accommodation. The employer’s actions constitute both denial of reasonable accommodation and interference in violation of the ADA.”
- Example: “A job applicant declines an interviewer’s request to submit to a pre-offer medical examination, citing the ADA’s prohibition against conducting medical examinations prior to making a conditional offer of employment. The interviewer refuses to consider the application without the examination, so the applicant submits to it. Regardless of whether or not the applicant is qualified or is hired, the employer engaged in interference as well as an improper disability-related examination in violation of the ADA.”
These examples show that a threat does not actually have to be carried out for the interference provision to be violated, and an individual does not actually have to be deterred from exercising or benefiting from ADA rights in order for the interference to be actionable.
PREVENTING AND ADDRESSING RETALIATION
- Develop and implement an anti-retaliation policy that not only outlines what retaliation is, but also provides specific examples of retaliation that managers and supervisors may not have otherwise realized were legally actionable.
- Provide regular training to executives, managers, supervisors and all other employees regarding your anti-retaliation policy.
- Create a mechanism through which employees can report concerns and instances of retaliation.
- Provide a clear explanation that retaliation will be subject to discipline up to and including termination.
- Preach and model civility, which can help reduce incidents of retaliatory behavior.
- Maintain frequent contact with an employee who may have been retaliated against in order to ensure clear lines of communication. This shows that the employer cares and believes in doing the right thing, which can make all the difference.
- Document any information and/or activities regarding issues leading up to a report of retaliation, such as employer contact with an employee to check on their well-being.
Trident Can Help
If you have any concerns about your own organization’s policies or have a compliance question, please contact Trident Public Risk Solutions’ Risk Control team. Also, don’t forget to download a copy of our sample Whistleblower and Anti-Retaliation Policy.
– Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act
– Q&A: Enforcement Guidance on Retaliation and Related Issues
– Small Business Fact Sheet: Retaliation and Related Issues
About the Author
Ashley Bonner, Senior Risk Control Consultant, brings 30 years of safety and risk management experience. She is GE Six Sigma certified with professional affiliations that include the American Society of Safety Engineers (ASSE), the National Safety Council and the World Safety Organization. Ashley holds a BA in Liberal Arts from the University of Mississippi, an associate degree in Occupational Safety & Health from Delgado College, and participated in Tulane University’s Master’s Program for Industrial Safety & Public Health.