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.

Glass houses and investigation of employment discrimination

Employee claims employer’s practices and or supervisors are discriminating. Employer investigates the claims and finds, not discrimination, but other facts showing conduct justifying termination. Did the employer retaliate? 

At least in the case below, the U.S. Seventh Circuit Court of Appeals said no. Given that employer investigations are a necessary part of good employment practices, the ruling makes sense. But employers might consider making sure that policies and practices are clear regarding how the employer may use information uncovered in an investigation.

The employees, university police officers, in Nichols v. Southern Illinois University, --- F.3d ---, 2007 WL 4553649 (7th Cir.), claimed retaliation arising from the University’s investigation into their complaints of discrimination.

They claimed, among other things, that they were denied “upgrades” (temporary promotions) based on race. Eventually, the officers wrote complaint letters to the University President leading to a University investigation regarding their complaints. The investigation uncovered facts and circumstances that resulted in formal dismissal charges against two of the officers. After separate hearings, the Merits Board found just cause for the charges against the two officers. 

After noting that the Merit Board, and not the University, actually dismissed the officers, the court observed that the officers were dismissed for reasons that were separate and distinct from the discrimination claims (reason such as gross insubordination, personal use of police cars, making false statements, failure to cooperate with an investigation, and “their baseless allegations against fellow officers.”). Their termination was based on their “objectively baseless allegations” against the other officers. Those officers’ retaliation claims, based on the Merit Board’s action, failed. 

Of course, the court addressed more than just retaliation. The court also considered a third officer’s claim of discrimination when he was placed on paid administrative leave pending a fitness-for-duty investigation arising from how he handles one particular situation. The court first determined that such paid administrative leave is not a materially adverse action. 

The court also rejected the officer’s discrimination claims based on “disproportionate” assignments to one, less desirable, campus rather than another. The court had little trouble dismissing this claim, particularly as the evidence showed the officers often requested assignment to the campus in question and that, in any event, the officers did not suffer a materially adverse employment action (change in compensation, etc.; reduced career prospects; or other negative change in the workplace). 

To me, however, the retaliation issue is the interesting part of the case. I believe it illustrates what is meant by not throwing stones in glass houses.