My most popular blog entry of 2015 by far was this one. Recently, January 21, 2016, the EEOC issued a proposed enforcement guidance on retaliation and related issues. They put it out for public comment for a period of 30 days. It is intended to provide the public with information about how the EEOC may guide its personnel in processing and investigating charges, making cause determinations, and in considering litigation. My friend and colleague Robin Shea, whose blog appears in my blog roll, had a great post discussing retaliation, the EEOC proposed guidance, and the current status of the law. What I wanted to do was focus on the ADA piece of it. Here are my thoughts:


1.  42 U.S.C. § 12203(a),(b) prohibit retaliation and interference, coercion, or intimidation. This particular section is very broad indeed and reaches even those situations where the conduct does not meet the materially adverse standard required for retaliation. EEOC gives specific examples as to what might constitute interference including: coercing an individual to relinquish or foregoing an accommodation to which he or she is otherwise entitled; intimidating an applicant from requesting an accommodation for the application process by indicating that such a request will result in the applicant not being hired; threatening an employee with loss of employment or other adverse treatment if he does not voluntarily submit to a medical examination or inquiry that is otherwise prohibited under the statute; issuing a policy or requirement purporting to limit an employee’s right to invoke ADA protections; interfering with the former employee’s right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers of the suit is filed; and subjecting the employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a co-worker in requesting reasonable accommodation. The interference must be such that it is reasonably likely to interfere with the exercise or enjoyment of ADA rights.


2. With respect to retaliation, as Robin discusses in the above-mentioned blog entry, protected activity can consist of either participation in the EEO process or opposing a practice made unlawful by an anti-discrimination statute.


3. There is a difference between participation and opposing a practice. With respect to an occurrence arising out of participating in the EEO process, that clause applies even if the underlying charge is not meritorious or was not timely filed. Participation encompasses internal complaints. With respect to opposition, an individual must have a reasonable belief that the matter complained of violates the laws in order for his or her statements or action to be protected.

4. A request for a reasonable accommodation is as we have seen throughout our blog protected activity.

5. The EEOC takes the position that compensatory and punitive damages are available for retaliation claims because Title I allows it (as discussed in my most popular blog of 2015, the answer isn’t as simple as that). They note in a footnote that the courts, especially the district courts, are split on this. The Circuit courts to date, as the EEOC notes, are saying the opposite, though some Circuits have affirmed such awards without visiting the question.  Undoubtedly, this question is headed to the Supreme Court. Since the Rehabilitation Act allows for compensatory and not punitive damages and 12203 relates back to the Rehabilitation Act, it is fair to say that compensatory but not punitive damages are allowed for retaliation involving Title II. With respect to Title III, since the remedies refer back to Title III remedies, compensatory and punitive damages would not be in play. So, the only real question is whether compensatory and punitive damages are in play for retaliation claims that occur in the employment context.

6. Another question is whether individual liability is in play where retaliation occurs. We know that Title I-III do not allow for individual liability. However, § 12203(a), the ADA retaliation provision, specifically includes within it the term, “person.” §12203(b), the interference provision, does not contain the term, “person.” Therefore, the question becomes with respect to retaliation, whether personal liability is in play. There are two views on that question with respect to title II matters. The view that personal liability is not in play represented by the case of Bertolotti v. Prunty, 2010 U.S. Dist. LEXIS 101015 (S.D. W. Va. September 21, 2010), which followed a Fourth Circuit decision saying that because retaliation remedies for the ADA are linked to title VII, which does not allow any remedy against individual defendants, individual liability is not possible. On the other hand, the 11th Circuit in Shotz v. City of Plantation, 344 F.3d 1161 (11th Cir. 2003) in a very extensive opinion said that individual liability is in play with respect to retaliation occurring under title II of the ADA because the retaliation provision specifically includes the word “person,” the statute with respect to individual liability is inscrutable, solid policy reasons exist for imposing individual liability in the title II context, and the Department of Justice in 28 C.F.R. § 36.104 refers to a private entity as including a person and since that rule went through proper rulemaking it is entitled to deference. So, in short, an argument exists for individual liability for retaliating against someone in the context of title II of the ADA. However, even if that argument would prevail, not at all a given, one wonders whether it would apply to the interference section because the word “person,” does not appear in that particular provision.