ADA AND SECTION 504 ANTI-RETALIATION PROTECTIONS NOT LIMITED TO INDIVIDUALS WHO ARE DISABLED

The Ninth Circuit Court of Appeals has found in the case of Barker v. Riverside County Office of Education (October 23, 2009) that the anti-retaliation provisions of Section 504 of the Rehabilitation Act of 1973 and the ADA apply even if the person who claims to have been retaliated against is not themselves disabled. In Barker, a special education teacher voiced concerns that her employer’s special education program was not in compliance with federal and state law and then, along with a coworker, filed a complaint on this alleged non-compliance with the U.S. Department of Education’s Office for Civil Rights. In response to this complaint, according to the employee, the school district retaliated by reducing her case load, intimidating her, excluding her from meetings and other activities that, according to the employee, led to an intolerable work environment.

The employee filed suit claiming she had been retaliated against for filing the complaint and voicing concerns about the alleged non-compliance of the district’s special education program. The court was asked to determine whether this teacher, who herself was not disabled, was afforded the protections of the anti-retaliation provisions of the two statutes. Looking at both statutes the court found that both protected "any person" who was retaliated against. The court further noted its belief that Congress intended to protect other individuals in recognition of the fact that disabled individuals may need assistance in vindicating their rights.

The lesson of Barker is clear. If school districts or other educational entities have employees who complaint internally or to outside agencies about the treatment provided to disabled students or employees, they must be treated the same as other employees and any appearance of retaliation for the complaints must be avoided.

IS A CHANGE IN THE SCHOOL CALENDAR A CHANGE IN PROGRAMING?

In Hawaii, students will now be getting seventeen Fridays off this year and seventeen next year in an effort to save money through a furlough of teachers.  However, several lawyers representing a group of students who qualify for special education have filed a suit trying to stop the plan.  The argument is that by taking seventeen days out of the school year, this is a change in programs and services the disabled children receive.  Given that the parents of these students were not consulted prior to this change, the suit alleges it violates the rights of the parents under IDEA.  The suit seeks a temporary restraining order and the first furlough day is this Friday.  Thus, we may know very shortly if in fact such a change in scheduling is a change that requires parental consent under the IDEA. 

CONGRESS TAKES AIM AT SUPREME COURT'S RULING ON ADEA

As I predicted back in June, when the Supreme Court issued it ruling in Gross v. FBL Financial Services, Inc., Congress has taken aim at trying to reverse the Court's decision legislatively.  In June, the Supreme Court's decision in Gross did away with burden shifting under the ADEA, in which once the employee established that age was at least part of the reason for the adverse employment decision, the burden shifted to the employer to show it was not.  In Gross, the Court ruled the burden is upon the employee the entire case to show the adverse action was taken against him or her as a result of their age.  In response last week, The Protecting Older Workers Against Discrimination Act was introduced in Congress.  The bill, if passed, would essentially overrule the decision in Gross by requiring employers, once an employee establishes that age was a factor in an adverse employment decision, to show it complied with the law.  There will be further posts on this bill as it makes its way through Congress.