In an ironic twist the Georgia Council for the hearing impaired, a nonprofit organization that provides services for the deaf and hard of hearing, is facing charges of wrongfully retaliating an employee who filed a disability discrimination charge against the organization. According to the Equal Employment Opportunity Commission (EEOC) an outreach/training employee filed a charge for disability discrimination with the EEOC in October 2012. The employer and employee successfully mediated their dispute and reached a settlement agreement. However, the employer violated the terms of their settlement agreement by providing negative job references, when it had promised to leave neutral feedback as a term of the settlement. The employer allegedly did this intentionally to sabotage the employee’s job prospects. This conduct, if true, violates Tile V of the Americans with Disabilities Act (ADA).

Retaliation under ADA

Generally an employee must show 3 things to establish a case for retaliation:

  • The employee exercised a protected right or performed a protected activity
  • The employer took an adverse employment action against the employee
  • The adverse action was taken because of the employee’s protected activity

After the plaintiff asserts the case the employer then bears the burden of production to show that they had legitimate reasons for taking the action, that are non discriminatory. Common examples include allegations that the employee committed misconduct. If the employer can show that it had a legitimate reason for the action the employee must then show that the reason the employer provided was actually pretextual. In other words the employee must show that the reason the employer offered was not actually the real reason.

In some extreme cases of retaliation the employer may actually file a lawsuit against the employee. This kind of lawsuit is known as Strategic Litigation Against Public Policy (SLAPP). When this happens in California the employee may be able to file an anti-SLAPP motion in order to get the lawsuit dismissed. An anti-SLAPP motion basically asserts that the sole reason behind the lawsuit was to harass or intimidate the employee from exercising his or her freedom of speech or exercising a protected right.

When to Contact an Attorney

Retaliating against employees simply because they exercise their rights to file a complaint is illegal. To learn more about how to exercise your legal rights contact the experienced California Employment Law attorneys of the Law Offices of Michael S. Cunningham, LLP. Call (951) 213-4786 to schedule a free consultation.

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