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Are ADA Interference Claims on the Verge of Becoming Mainstream in Employment Cases?

Attorneys litigating claims pursuant to the Americans with Disabilities Act ("ADA") usually focus on failures by an employer to accommodate a disability, their failures to engage in an interactive process related to an accommodation request, or retaliation. A recent decision by the U.S. Court of Appeals for the Seventh Circuit in Frakes v. Peoria School District No. 150, 872 F.3d 545 (7th Cir. Sept. 26, 2017), however, clearly articulated the elements to prove for an ADA interference claim. The ADA contains prohibitions against both retaliation (42 U.S.C. § 12203(a)) and interference (42 U.S.C. § 12203(b)). This distinguishes the ADA from most other EEO laws, which only prohibit retaliation, but do not reference interference in any manner.

The ADA's interference provision provides:

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.

Importantly, an individual need not prove that they have a "disability" or are "qualified" to be protected from retaliation or interference under the ADA, and the same remedies that are available under the ADA's retaliation provision are also available under its interference provision. See 42 U.S.C. § 12203(c).

Prior to Frakes v. Peoria School District No. 150, court decisions gave scant interpretations of the standard applicable to an ADA interference claim. In Frakes, a special education teacher sued her employer after it placed her on a layoff list due to an unsatisfactory performance evaluation she received. Ms. Frakes challenged her performance evaluation and defended her teaching methods, but did not specifically state she was exercising rights under the ADA or supporting her special needs students.

In announcing the standard for establishing an ADA interference claim (which is the same under Section 504 of the Rehabilitation Act, the law at issue in Frakes), the Seventh Circuit borrowed from its standard for interference claims pursuant to the Fair Housing Act ("FHA"), holding that:

[A] plaintiff alleging an ADA interference claim must demonstrate that: (1) she engaged in activity statutorily protected by the ADA; (2) she was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; (3) the defendants coerced, threatened, intimidated, or interfered on account of her protected activity; and (4) the defendants were motivated by an intent to discriminate.

The Frakes Court cited to a prior Ninth Circuit case, Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003), that had also applied the FHA's interference standard to an ADA interference claim. In Brown, the Ninth Circuit stated, "[f]or whatever else that provision may prohibit, it clearly makes it unlawful to 'threaten ... any individual in the exercise or enjoyment of ... any right granted or protected by this statute.'" Brown, 336 F.3d at 1193. The Frakes Court affirmed the district court's grant of summary judgment, finding that Ms. Frakes' opposition to her performance evaluation was not "an assertion of rights on behalf of her disabled students."

The EEOC has also given recent attention to the ADA's interference provision, as it issued an "Enforcement Guidance on Retaliation and Related Issues" on August 29, 2016, which stated that ADA "interference is broader than retaliation" and provided examples of employer conduct that would be prohibited und er the ADA interference provision, including, in part: (1) "[C]oercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled"; (2) "issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states 'no exceptions will be made for any reason')"; and (3) "subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation."

Employers and employment lawyers (both plaintiff and defense) should have a heightened awareness of potential ADA interference claims, as it appears to be an emerging area of employment law. It is one that at once holds promise for mistreated employees looking for an alternative tool to hold employers accountable, and further complicates how employers should react to employee conduct that implicates the ADA.

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