ADA Prohibits Retaliation Against Workers Who Telecommute As A Reasonable Accommodation

July 17, 2020, Society of Human Resources Management (SHRM) Online News, by Allen Smith, J.D.

Workers who are at higher risk for severe illness from COVID-19 because of an underlying impairment may be entitled to telecommute as an accommodation under the Americans with Disabilities Act (ADA). But they may also be scared of being retaliated against for telecommuting.

Make sure managers know that the ADA prohibits retaliation, particularly given how common retaliation claims have become and how difficult they are for employers to defend against.

“Such claims are on the rise,” said Kristen Gallagher, an attorney with McDonald Carano in Las Vegas. According to the Equal Employment Opportunity Commission, the number of charges alleging retaliation has more than doubled in the last 20 years. In 1997, across all equal employment opportunity (EEO) statutes, claimants alleged retaliation in 22.6 percent of filed charges. That percentage has increased almost every subsequent year, Gallagher noted. In 2019, the percentage climbed to 53.8 percent.

What Plaintiffs Need to Show in Retaliation Claims

“Retaliation claims can be easier to prove than claims of discrimination,” said Laura Jacobsen, an attorney with McDonald Carano in Reno, Nev.

“This is because, to prevail on a retaliation claim, an employee does not need to prove that the conduct opposed actually was discriminatory or illegal,” she said. “Instead, an employee must demonstrate that at the time [he or she] engaged in protected activity, the employee had a reasonable, good-faith belief that the underlying conduct violated the law.”

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