FIRED ADVOCATE FOR THE DISABLED MAY SUE FOR RETALIATION
The Ninth Circuit U.S. Court of Appeal recently charted new territory by allowing a non-disabled employee to sue her employer under the anti-retaliation provisions of the Americans With Disabilities Act and the Rehabilitation Act.
The case of Barker v. Riverside County Office of Education pitted a special education teacher named Susan Barker against her former employer, the County of Riverside. During her employment with the County, Barker complained that her students were not receiving an adequate public education in accordance with federal and state law. According to Barker, the school district began a campaign of retaliation against her after she filed a formal complaint on behalf of her students with the United States Department of Education. Among other things, Barker claimed that the school district reduced her caseload, excluded her from meetings, changed her work assignments to locations further from her home, and refused to continue allowing her to substitute for teachers who were taking their vacations. Barker claimed that she was ultimately forced to resign because the County's retaliatory behavior towards her created a hostile and intolerable work environment.
Barker filed suit in federal court against the Riverside County Office of Education, alleging unlawful retaliation under both the Americans with Disabilities Act and another federal job bias law called the Rehabilitation Act. The court dismissed the case because Barker was neither disabled, nor closely related to a disabled person. As such, the court reasoned that she did not have the right to bring suit under either of these laws.
Barker appealed the dismissal of her case to the Ninth Circuit U.S. Court of Appeals in San Francisco. In a case of first impression, the Ninth Circuit reinstated her lawsuit. In doing so, the Ninth Circuit liberally construed the anti-retaliation provisions in the ADA and the Rehabilitation Acts to afford protection not only to disabled persons, but also to non-disabled individuals who merely advocate on behalf of individuals with disabilities. Finding that Barker fit into the second group, the Ninth Circuit reinstated her lawsuit and sent the case back to the lower court for a trial.
This decision is very significant for employers because it significantly broadens the scope of the anti-retaliation provisions in the ADA and the Rehabilitation Act. According to the court, a person who is not disabled will still be allowed to sue under the anti-retaliation provisions so long as he or she alleges that they suffered adverse treatment of some kind for having advocated for a disabled person.
The lesson from this case is that supervisory personnel must be careful not to mistreat such employees or depart them from their normal treatment. Management must be mindful of how this ruling affects their management of individuals who stand up for others in the workplace - including on behalf of advocacy those who are not even employees.
We stand ready to assist you if you have any questions about the application of this decision to your business.
For more information, call us today at (818) 508-3700,
or visit us on the web, at www.brgslaw.com.Sincerely,Richard S. RosenbergPartnerBRG&S, LLP | 
