Jottings By An Employer's Lawyer

Wednesday, July 30, 2003

9th Circuit: Interference with ADA Rights, Separate and Broader Cause of Action Than Retaliation

Noting that it was perhaps opening a wide door, nevertheless the 9th Circuit finds that a cause of action under Section 503(b) of the ADA which prohibits interference with the exercise of rights under the ADA is distinct from, and broader than a cause of action for retaliation under Section 503(a). Brown v. City of Tucson, (9th Cir. 7/30/03) [pdf]. Although summary judgment for the City was upheld on the retaliation claim under the burden shifting analysis of McDonnell-Douglas, the same analysis did not apply to the interference claim. Nor does it equate to a hostile environment claim, which would require a finding of an adverse employment action. The most applicable standard is that found under the Fair Housing Act, which has an identical provision. Unfortunately, that standard does not give much guidance for its application under the ADA. At a minimum however, where as here there were allegations of threats for exercising her rights under the ADA, in this case being threatened with adverse action if she did not give up the accommodation for her disability, it is sufficient to survive summary judgment under Section 503(b). It would be a surprise if the Supreme Court were not given a chance to shut this door that the 9th Circuit may well have opened.


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