What is the difference between retaliation and interference with disability rights?
In addition to prohibiting employers from “retaliating” against an employee for asserting his or her disability rights, the Americans With Disability Act (ADA) includes a provision prohibiting employers from “interfering” with an employee’s disability rights.
Retaliation occurs when an employer takes “adverse action” against an employee with a disability for exercising rights that are protected under the ADA. Retaliation includes actions such as firing, demoting, providing a negative performance review, transferring the employee or cutting the employees’ hours.
The interference provision prohibits conduct that is reasonably likely to
interfere with statutorily protected or granted ADA rights. Interference includes coercion, threats, or intimidation by an employer against an employee who expresses an intent or attempts to assert his or her rights under the ADA.
The interference provision protects employees from being deterred from asserting their disability rights. While similar to retaliation, the interference provision is broader, encompassing activity that may not rise to the level of the adverse action required to establish retaliation.
An employer’s threats or coercion do not need to be carried out in order to violate the ADA’s interference provision. Nor do the threats need to actually deter the employee from asserting his or her rights.
Interference with disability rights during the hiring process
Interference with disability rights can occur during the hiring process, such as when an employer intimidates a job applicant from requesting accommodations during a employment test or interview with the threat that the applicant will not be offered a job if he or she does so.
An employer also interferes with a job applicant’s rights under the ADA if the employer tells a job applicant that he or she must answer disability-related questions or the employer will not consider the applicant for employment. In most cases, an employer is not permitted to ask an applicant questions about whether the applicant has a disability or require a medical examination prior to making a job offer.
The interference provision is triggered when the employer attempts to coerce the applicant to give up his or her disability rights, regardless of whether the applicant is hired or not.
Interference with disability rights and retaliation often go hand in hand
Threats, coercion, or intimidation can stop an employee from asserting his or her disability rights altogether. However, interference often overlaps with retaliation. An employer may attempt to dissuade an employee from filing a request for a reasonable accommodation through threats or coercion, and then retaliate against the employee if he or she files the request anyway.
For example, an employee may inform a supervisor of his or her intent to request a reasonable accommodation in the form of a schedule change. If the employer posts a notice that no schedule changes will occur under any circumstances, that may interfere with the employee’s disability rights if it discourages the employee from requesting the schedule change. Also, if the employer offers a voluntary schedule change conditioned on the employee’s withdrawal of his formal accommodation request, that is also interference with the employee’s disability rights.
Any attempts by the employer to coerce, threaten, or intimidate the employee from requesting a reasonable accommodation in the first place would constitute interference with disability rights. If, despite the employer’s interference, the employee formally requests a reasonable accommodation and the employer takes some adverse action against the employee, that would constitute retaliation.
ABOUT THE AUTHOR: Michael Murphy
Michael Murphy is the founding member of Murphy Law Group, LLC, in Philadelphia. Murphy Law Group represents residents of both Pennsylvania and New Jersey who are involved in employment-related disputes with their employers.
Murphy is known for his quality, client-focused representation in all matters pertaining to employment law, including discrimination, harassment, retaliation, and wage and hour violations. He has extensive experience in bringing class-action lawsuits and has successfully recovered millions of dollars in unlawfully denied compensation.