The U.S. Equal Employment Opportunity Commission (EEOC) defines “retaliation” as a materially adverse action that an employer takes when an applicant or employee asserts rights protected by the Equal Employment Opportunity (EEO) laws. Asserting EEO rights is called “protected activity,” and can take the form of filing an EEO complaint, serving as a witness, or reasonably opposing conduct against EEO law.
To state a claim of retaliation under the Americans with Disabilities Act (ADA), a plaintiff must show that (1) she engaged in protected activity, (2) that an adverse employment action was taken against her, and (3) that there was a causal link between the protected activity and the adverse employment action.
In Ford v. Gates Hudson & Assocs., Civil Action 1:21-cv-01217 (RDA/TCB) (E.D. Va. Jul. 26, 2022), the court found that the plaintiff had established a claim for retaliation under the ADA. The evidence showed that the plaintiff (1) engaged in protected conduct when requesting an accommodation for his disability and then questioning the denial of such, (2) experienced an adverse employment action when the defendant placed him on a Performance Improvement Plan (PIP) and used that PIP as grounds for dismissal, and (3) was dismissed within a month of his request for accommodations.
Lesson for Employers – Temporal Proximity and Other Evidence of Retaliation
The Fourth Circuit has held that plaintiffs may use temporal proximity and other evidence of retaliatory animus to show a causal connection between the protected activity and the adverse employment action.
The crucial factor in Ford that “sealed the deal” for the court in establishing a case for retaliation was the time in between the employee’s request for accommodations and his subsequent termination. The Ford court found that one month in between the protected activity and the adverse employment action was sufficiently close to show causation through temporal proximity. The plaintiff was also able to provide evidence of supervisor comments that showed a plausible basis to infer a retaliatory intent, in which the supervisor expressed her discontent with the plaintiff’s requests for accommodations.
While it is evident that employers should mitigate potential liabilities at every turn, actually working out what is considered a liability can be a challenging task. Ford provides employers with an example of what conduct constitutes adverse employment actions in the context of retaliation, as well as what can lead a court to determine that a retaliatory causal link exists between employer conduct and subsequent termination of an employee.