EEOC Issues Updated Retaliation Guidance, Part 4: Interference Versus Retaliation Under the ADA

ADA, Retaliation
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EEOC logoImagine you work for an employer covered by the Americans with Disabilities Act of 1990 (ADA). Due to your ADA-recognized disability, you need to take certain medications at work and avoid certain job duties as ordered by your doctor.

Despite the fact that your medication requirement or job duties restriction can be reasonably accommodated by your employer, your boss asks that you stop taking the medications and start doing the job duties your doctor told you to avoid. Your boss also says that you’ll be forced to retire if you don’t comply.

Are you the victim of discrimination based on disability? Possibly. What about retaliation? Maybe. But there’s another ADA violation that your employer has very likely committed: interference.

The Americans With Disabilities Act of 1990

The ADA protects individuals, especially employees, from discrimination based on a disability. In addition to a prohibition on discrimination, the ADA contains an antiretaliation provision, similar to other federal discrimination laws, such as Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963.

Because there are behaviors that may not necessarily rise to the level of discrimination or retaliation under the ADA, the ADA contains an interference provision that states:

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.

For more background on the elements of a retaliation claim, you may read our earlier two blog posts, “EEOC Issues Updated Retaliation Guidance, Part 2: What Constitutes a Protected Activity” and “EEOC Issues Updated Retaliation Guidance, Part 3: Proving Retaliation.”

To learn more about the ADA in general, you can read Nolo.com’s article “Disability Discrimination in the Workplace: An Overview of the ADA” and the EEOC’s publication “The ADA: Questions and Answers.”

The ADA’s Interference Provision

wheelchair-623198__340How exactly is the ADA’s interference provision different from its antiretaliation provision? The interference provision is much broader, encompassing employer behavior that may not always rise to a materially adverse action. However, the ADA’s antiretaliation and interference provisions are similar in that neither requires the victim of the prohibited behavior to have an ADA-recognized disability.

One example of how an action can be interference, but not retaliation, is when an employer pressures an employee to give up an ADA-required accommodation.

The ADA’s interference provision also has a reasonableness standard in that not all employer behavior will be considered interference, even if the employee believes otherwise. Only actions that are reasonably likely to interfere with rights provided by the ADA will qualify as interference.

In reality, many instances of interference will also rise to the level of discrimination and/or retaliation. However, the ADA interference provision provides additional safeguards to protect a wider range of individuals against behavior that may not be otherwise prohibited.

Summing It Up

  • The ADA, like many other federal discrimination statutes, has an antiretaliation provision.
  • Because some employer actions may not rise to the level of retaliation or discrimination, the ADA also contains an interference provision.
  • The ADA interference provision prohibits an employer from interfering with an individual’s right to enjoy, or help someone else enjoy, ADA protections.
  • The ADA’s interference provision is much broader than its antiretaliation provision and therefore will prohibit certain types of behavior that wouldn’t otherwise rise to the level of retaliation.