FIRED ADVOCATE FOR THE DISABLED MAY SUE FOR RETALIATION
The Ninth Circuit U.S. Court of Appeal recently charted new territory by allowing a non-disabled employee to sue her employer under the anti-retaliation provisions of the Americans With Disabilities Act and the Rehabilitation Act.
The case of Barker v. Riverside County Office of Education pitted a special education teacher named Susan Barker against her former employer, the County of Riverside. During
her employment with the County, Barker complained that her students
were not receiving an adequate public education in accordance with
federal and state law. According
to Barker, the school district began a campaign of retaliation against
her after she filed a formal complaint on behalf of her students with
the United States Department of Education.
Among other things, Barker claimed that the school district reduced her
caseload, excluded her from meetings, changed her work assignments to
locations further from her home, and refused to continue allowing her
to substitute for teachers who were taking their vacations. Barker
claimed that she was ultimately forced to resign because the County's
retaliatory behavior towards her created a hostile and intolerable work
environment.
Barker filed suit in federal court
against the Riverside County Office of Education, alleging unlawful
retaliation under both the Americans with Disabilities Act and another
federal job bias law called the Rehabilitation Act. The court dismissed the case because Barker was neither disabled, nor closely related to a disabled person. As such, the court reasoned that she did not have the right to bring suit under either of these laws.
Barker appealed the dismissal of her case to the Ninth Circuit U.S. Court of Appeals in San Francisco. In a case of first impression, the Ninth Circuit reinstated her lawsuit. In
doing so, the Ninth Circuit liberally construed the anti-retaliation
provisions in the ADA and the Rehabilitation Acts to afford protection
not only to disabled persons, but also to non-disabled individuals who merely advocate on behalf of individuals with disabilities. Finding
that Barker fit into the second group, the Ninth Circuit reinstated her
lawsuit and sent the case back to the lower court for a trial.
This
decision is very significant for employers because it significantly
broadens the scope of the anti-retaliation provisions in the ADA and
the Rehabilitation Act. According to the
court, a person who is not disabled will still be allowed to sue under
the anti-retaliation provisions so long as he or she alleges that they
suffered adverse treatment of some kind for having advocated for a
disabled person.
The
lesson from this case is that supervisory personnel must be careful not
to mistreat such employees or depart them from their normal treatment. Management
must be mindful of how this ruling affects their management of
individuals who stand up for others in the workplace - including on
behalf of advocacy those who are not even employees.
We stand ready to assist you if you have any questions about the application of this decision to your business.
For more information, call us today at (818) 508-3700,
or visit us on the web, at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Partner
BRG&S, LLP
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