May 01, 2019

Reviewing ADA Retaliation Pitfalls in the Hiring and Firing Processes

Steve A. Miller, Fisher Phillips, Chicago, IL

Americans with Disabilities Act (ADA) compliance issues arise often in hiring and terminating employees. In many situations, such issues can be difficult to navigate. In hiring, health employers want to make sure the person they hire can actually perform the essential functions of the position, but they often do not know how to obtain the information necessary to make this assessment without violating the law. In regard to terminations, employers often may grow impatient with those employees they believe make unreasonable accommodation requests – for example, requesting too much time off.

In such situations, employers and their counsel should be mindful of all ADA-related issues before making impulse decisions. In 2017 (the most recent year for which statistics are available at the time of this writing), 31.9 percent of all charges of discrimination filed at the Equal Employment Opportunity Commission (EEOC), the regulatory body that investigates and enforces violations of the ADA, included a claim of disability discrimination.1  Health employers, like all employers, must be thoughtful of all ADA issues when making personnel decisions, or they will risk exposure to significant legal and economic consequences.

Who Is Protected?

The ADA prohibits job discrimination against “qualified individuals” who have disabilities.2 Under the ADA, a disability is defined as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such impairment.3

For the first two decades of the ADA’s existence, employers often successfully argued that employees were not “disabled enough” to obtain relief under the ADA. However, in 2008, the ADA Amendments Act (ADAAA) quashed many of these arguments, changing the law to make it more inclusive. The ADAAA maintained the definition of disability cited above, but added that the definition “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.4 Furthermore, the ADA, as amended, defines “major life activities” broadly to include seeing, hearing, eating, sleeping, standing, breathing, concentrating, thinking and working, among other things.5

Due to this broad definition and the employee-friendly amendments set forth in the ADAAA, the issue of whether an employee has a “disability” usually favors the employee. As such, engaging in the reasonable accommodation process has become more and more important. As discussed in more detail below, health employers should commence an interactive process with the employee or prospective employee to determine the means by which the employer would need to accommodate the disability.

ADA Considerations Start Early in the Employment Process

Individuals who have applied for a job or are under consideration for a job are protected by the ADA, just like active employees are. Thus, employers should be just as aware of their obligations under the ADA during the hiring process as they are when handling such issues with current employees. First, employers should be mindful of their ADA obligations as soon as the first advertisement is posted for an open position. The job advertisement should clearly state the essential functions of the job, as the ADA protects those individuals who can perform the essential functions of the job, with or without reasonable accommodation.6 Employers should be aware that if the employee is hired, and the job requires the employee to perform job functions different from those described in the job description, the employer may be limited in how it can respond to the employee’s inability to carry out those job functions.

A recent case illustrates this point. In Snead v. Fla. Agric. & Mech. Univ. Bd. of Trustees,7 the employee had worked as a campus security officer for eight years when the campus police chief changed all of the officers’ work schedules from eight-hour shifts to 12-hour shifts.8 Shortly after the employee started working the new 12-hour shifts, he became physically ill and sought medical care.9 His doctor diagnosed him with high blood pressure and identified the new 12-hour shifts as the cause.10 The employee asked to be accommodated by being placed on an eight-hour shift schedule in order to minimize his physical ailments, but the university denied the request as unreasonable.11 The employee sued and was awarded over $250,000 in damages.12

The employer appealed, but the appeals court affirmed the jury verdict for one main reason: The employer’s job description for the security officer position did not list the ability to work 12-hour shifts as an essential function.13 The court pointed to the fact that the job description included an “Essential Functions” section, which specifically described certain tasks as “fundamental to the position,” but failed to include any specified shift length among these functions.14

The Snead case highlights the importance of the continuing trend of accurately detailing and periodically reviewing job descriptions. Courts have long looked to job descriptions to identify the essential functions of the employee’s job. Snead demonstrates that this practice remains relevant today.

Although in Snead the job description issue arose eight years into the employee’s employment, this case provides guidance in the hiring context. If a prospective employee has a disability, but the employee’s disability allows him or her to perform the essential functions of the job as defined by the job description, the employer may not be able to take action against the employee for his or her inability to perform job duties that are outside the essential functions described in the job description. In these situations, the employer will need to consider whether it can provide the employee with a reasonable accommodation to allow the employee to perform those duties.

ADA Retaliation Considerations During Employment

During employment, employers must continue to focus on a wide variety of potential ADA issues. The most common issue that arises during employment is where an employee states his or her disability limits or prohibits his or her ability to perform the essential functions of the job, and makes a request for a reasonable accommodation. When an employee makes such a request, it is important for the employer to engage with the individual by starting an interactive process where the employer and employee collaboratively discuss reasonable accommodations that will allow the employee to perform the essential functions of the job. Common accommodations to consider include, but are not limited to, shift changes, light duty, modified work schedule or unpaid leave. In addition, an employee is not entitled to an accommodation of his or her choice, but to a reasonable accommodation.

Furthermore, employers must avoid any inclination to take an adverse action against an employee for requesting an accommodation or after the employee indicates he or she is unable to perform the job due to a disability. If the employer takes an adverse action against the employee for making an accommodation request, the employer may be exposed to liability for retaliating against the employee for exercising his or her rights under the ADA. The EEOC defines “retaliation” as “when an employer takes a materially adverse action because an applicant or employee asserts rights protected by the EEO laws.”15 “Materially adverse actions” may include, but are not limited to, termination, demotion, reduced hours, pay decreases or any other material change in the employee’s job status.16

Retaliation claims are very common and rising, due, in part, to there being no need for a valid retaliation claim to be attached to a truthful discrimination claim. The number of retaliation charges received by the EEOC in recent years has steadily increased. In 2007, the agency received 26,663 retaliation charges, constituting approximately 32 percent of its overall charge volume.17 By 2017, the number of retaliation charges rose to 41,097, which makes up nearly half of all charges received.18

This uptick in the volume of charges does not even reflect the number of additional retaliation charges received annually by state and local equal employment opportunity agencies. Many states and local municipalities have created agencies similar to the federal EEOC that provide forums for employees to bring retaliation claims. The figures cited above are EEOC statistics only and do not encompass the additional thousands of retaliation claims that are brought before state and local agencies. In short, retaliation claims are common and employers must be cognizant of actions that could expose the company to liability.

Retaliation in Action: Ruggiero v. Mount Nittany Medical Center

A recent Third Circuit case, Ruggiero v. Mount Nittany Medical Center19 is representative of issues employers may face in the healthcare industry, particularly as to retaliation claims. In Ruggiero, the plaintiff, Aleka Ruggiero, worked as a registered nurse for her employer, Mount Nittany Medical Center.20 Ruggiero suffered from severe anxiety and eosinophilic esophagitis.21 She received a memorandum from her employer advising her that all clinical employees were required to receive a vaccine for tetanus, diphtheria and pertussis. Ruggiero’s doctor issued a note to Ruggiero exempting her from receiving the immunization due to severe anxiety associated with some side effects from the injection.22 Ruggiero’s employer advised her that her doctor’s documentation did not meet the definition of medical contraindication as detailed in the manufacturer’s vaccine literature and the employer required the plaintiff to receive the vaccine.23 Ruggiero suggested a possible accommodation of wearing a mask instead of receiving the vaccine.24 She never received the vaccine and her employer terminated her employment.25 Ruggiero filed suit against her employer, alleging that it discriminated against her on the basis of her disability, in violation of the ADA.26

The court held that Ruggiero had sufficiently pleaded a violation of the ADA where (1) her employer was aware of the plaintiff’s disability, (2) Ruggiero communicated her desire for an accommodation, and (3) Ruggiero’s allegations plausibly inferred that her employer failed to engage in the interactive process.27 Specifically, the court held that Ruggiero’s allegations of her impairments, and that these impairments limited certain life activities such as sleeping, eating and engaging in social interaction, were sufficient to plead that she was a qualified individual with a disability within the meaning of the ADA.28

Ruggiero highlights difficulties employers face when challenging the “adequacy” of the employee’s disability. As long as the employee alleges that the purported disability substantially limits him or her in certain life activities, courts will conduct no further inquiry and determine such allegations adequate on the pleadings. Further, it is difficult for employers to challenge the sufficiency of a plaintiff’s disability on summary judgment where the plaintiff can easily create at least a question of fact as to the impact of the purported disability on the employee’s day-to-day life. Attacking whether an employee’s disability is covered by the ADA is usually not a winning battle for employers. Once an employer is provided notice of the employee’s alleged disability, the employer’s duty to engage in the interactive process is triggered. Employers should not take their interactive process obligation lightly. 

ADA Protections Extend to Nondisabled Employees

As part of a growing trend, courts recognize the validity of ADA retaliation claims from nondisabled employees. Some courts have held that as long as an employee attempts to exercise his or her rights under the ADA, and is retaliated against for exercising these rights, it does not matter whether the impairment does not ultimately qualify as a disability.29 As long as the employer took an adverse action against the employee for expressing a need for an accommodation, the employer can be held liable. Again, it is vitally important for the employer to engage in the interactive process with the employee (which may be more than a single conversation) to discuss the available options.

Disability Protections in the Context of Transgender Rights

While the ADA protects those with disabilities, the law is not yet settled when applied in new circumstances. For example, transgender rights are prevalent in today’s social and political landscape. As shown by recent case law, transgender issues may implicate the ADA, even though the ADA explicitly excludes “transsexualism” and “gender identity disorders not resulting from physical impairments” from the definition of “disability.” In Blatt v. Cabela’s Retail, Inc.,30 the plaintiff was diagnosed with Gender Dysphoria, also known as Gender Identity Disorder.31 The plaintiff alleged that her disorder limited one or more of her major life activities, including, but not limited to, interacting with others, reproducing and social and occupational functioning.32 The plaintiff claimed that her employer discriminated against her on the basis of her disability, in violation of the ADA.33 The court held that the “gender identity disorders” exclusion in the ADA refers only to the condition of identifying with a different gender, but does not exclude ADA coverage for disabling conditions that persons who identity with a different gender may have, such as the plaintiff’s gender dysphoria.34

Conversely, in Parker v. Strawser Construction, Inc.,35 the court rejected Blatt’s interpretation of the ADA exclusion.36 The court stated that the exclusion plainly applies to all “gender identity disorders not resulting from physical impairments” without regard to whether the gender identity disorder is disabling.37 Parker rejected Blatt’s position that whether a condition is “disabling” depends on whether the condition substantially limits one or more major life activities, because a limitation of major life activities is a requirement for all conditions that qualify as a disability under the ADA.38 “Thus, gender identity disorders that do no substantially limit a major life activity are already excluded from coverage, and an additional exclusion for any non-disabling condition would be superfluous.”39

As shown by Blatt and Parker, the ADA’s protections are evolving, and its exclusions are subject to court interpretation. Thus, predicting the scope of protections courts will afford to transgender individuals will be difficult. In situations where a transgender employee seeks an accommodation for the employee’s purported disability, it is a best practice for the employer to work with the employee in an effort to identify a viable alternative. The risk of costly litigation is not worth avoiding the effort to identify a reasonable accommodation.

Final Takeaways

There are steps health employers and their counsel should take to minimize the risk of potential ADA pitfalls during employment. They should create job descriptions that define essential functions and qualifications, and they should coordinate about appropriate advertising to best develop the candidate pool for a position. Inquiries, both before and during a formal interview, should be directed to the applicant’s ability to perform those functions and meet those expectations and should elicit only that information necessary to make a legitimate and informed decision for the position sought.

Furthermore, health employers, as with any other employer, must engage with employees who request accommodations. It is critical for employers to complete the interactive process and take all requests for reasonable accommodations seriously. Finally, once an employee makes an accommodation request or engages in any other protected activity under the ADA, the employer must refrain from taking any action that materially alters the employee’s job status in response to the employee’s accommodation request.

As a general rule, employers should remember to always engage with their employees and to be fair with all employees in response to such requests. As the law continues to evolve and the number of EEOC charges steadily increases, the safest course of action for employers is to engage in the interactive process with the employee, rather than forego a defense in risky litigation.

A “one-size-fits-all” approach is not practical for many issues that arise under the ADA. Employers and their counsel should conduct an individualized inquiry as to what may be appropriate on a case-by-case basis.  Respecting the complexity of the ADA can prove to be invaluable in avoiding perilous litigation. 

  1.  See Charge Statistics, EEOC, https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.
  2.  42 U.S.C. § 12111(8).
  3.  42 U.S.C. § 12102(4)(1)(A).
  4.  Id.
  5.  Id.
  6.  42 U.S.C. § 12111(8).
  7.  724 F. App’x 842 (11th Cir. 2018).
  8.  Id. at 844.
  9.  Id.
  10.  Id.
  11.  Id.
  12.  Id.
  13.  Id. at 845-46.
  14.  Id.
  15.  See Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, EEOC, https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm (2016).  Following the conclusion of the EEOC’s investigation, a complainant will have approximately 90 days to file a lawsuit in court based on those allegations.  If he or she fails to do so, those claims may be forfeited.
  16.  See EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC, https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm (2016).
  17.  See Charge Statistics, EEOC, https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.
  18.  Id.
  19.  736 Fed.Appx. 35 (3rd Cir. 2018).
  20.  Id. at 37.
  21.  Id.
  22.  Id.
  23.  Id. at 38.
  24.  Id.
  25.  Id.
  26.  Id.
  27.  Id. at 40.
  28.  Id.
  29.  See Bouard v. Ramtron Int'l Corp., No. 12-CV-00494-WYD-MJW, 2014 WL 1389959, at *4 (D. Colo. 2014) (“when analyzing an ADA retaliation claim, whether or not the plaintiff is disabled is immaterial”).
  30.  No. 5:14-cv-4822, 2017 WL 2178123 (E.D. Pa. 2017).
  31.  Id. at *2.
  32.  Id.
  33.  Id.
  34.  Id. at *3-*4.
  35.  307 F. Supp. 3d 744 (S.D. Ohio 2018).
  36.  Id. at 755.
  37.  Id.
  38.  Id.
  39.  Id.

Steve Miller

Fisher Phillips

Steve Miller is managing partner of the Fisher Phillips Chicago office. His practice involves representing management in all areas of labor and employment law, including employment discrimination, employment contracts, employment law compliance, and traditional labor law. He can be reached at smiller@fisherphillips.com.