Disabling ADA Retaliation Claims

Abstract

The Americans with Disabilities Act (ADA) was amended in 2008 to dramatically expand the definition of disability and, concomitantly, the class of employees who can sue under the ADA. These Amendments have led to a flurry of scholarly activity, predicting what would happen under the newly amended statute and summarizing what has happened thus far. But one area of unexplored inquiry is retaliation claims under the ADA. It is that body of cases that this article investigates. Specifically, I set out to explore what effect the expansion of the definition of disability would have on the post-Amendments ADA retaliation cases. In order to do this, I combed through a body of 1,191 cases. What I discovered surprised me. Despite the common belief that retaliation cases are often more successful than cases alleging status-based discrimination, this did not prove to be true with respect to this dataset of ADA retaliation cases. In fact, as indicated by the title of this article, courts continue to disable employees’ disability retaliation claims. In fact, plaintiffs lost (e.g., did not survive a motion to dismiss or a motion for summary judgment) in three-quarters of all post-ADAAA retaliation cases in my dataset. This article explains the methodology and results of my study; explores how and why courts are disabling ADA retaliation cases; and discusses the implications of my findings.

Keywords: disability, ADA, retaliation, employment, discrimination, empirical, study