On August 25, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued the Enforcement Guidance on Retaliation and Related Issues (“Guidance”). This Guidance updates EEOC’s 1998 positions on retaliation claims relating to alleged equal employment opportunity violations, and was effective upon issuance. This is the seventh post in our series, and it examines Americans with Disabilities Act (“ADA”) interference claims, a relatively distinct subsection of the Guidance.
The ADA interference provision is distinct from the ADA’s anti-retaliation provision, creating a broader prohibition on “interference” with the exercise or enjoyment of ADA rights. The relevant provision, 42 U.S.C. § 12203(b), protects any individual who is subject to coercion, threats, intimidation, or interference with respect to ADA rights. Moreover, an applicant or employee need not establish that he is an "individual with a disability" or "qualified" in order to prove interference under the ADA.
Due to the substantial overlap between the interference and anti-retaliation provisions, many of the actions that constitute interference, such as denial of accommodation, discrimination, or retaliation, are actionable under the ADA’s anti-retaliation provision. However, the broader interference provision covers actions that would not be considered “materially adverse,” such as coercing an individual to forgo an accommodation to which he or she is entitled, threatening adverse treatment unless an employee “voluntarily” submits to an otherwise prohibited medical examination, policies that purport to limit employees ADA rights (ex: a fixed leave policy that states "no exceptions will be made for any reason"), or subjecting an employee to adverse treatment for assisting a coworker in requesting reasonable accommodation.
Ultimately, the fact an employee found a statement or certain conduct intimidating is insufficient for an ADA interference claim. The standard articulated in the Guidance, is that the interference provision “only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights.” Additional examples of interference, with detailed hypotheticals, can be found in the Guidance itself, provided online at: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm