Sometimes individuals are intimidated or harassed because they are trying to enforce or help others to enforce the right to be free from disability based discrimination under Section 504 and the Americans with Disabilities Act (ADA). Both of these laws protect individuals with disabilities from discrimination. Additionally, these laws prohibit retaliation against a person with a disability (or persons who are acting on behalf of a person with a disability) for trying to enforce their rights under these civil rights laws. Individuals with disabilities and their families are often dependant on service providers such as schools and others for their services. Individuals are often reluctant to question how services are delivered because they fear they will face a reduction or termination of services as payback.
The anti-retaliation provisions of section 504 and the ADA help allay that fear of payback so that individuals are not as afraid to enforce their rights or the rights of their family members and associates with disabilities. The anti-retaliation provisions of Section 504 (note Section 504 applies the retaliation protections in Section 102 of Title I of the Civil Rights Act of 2004) and the ADA is very broad. It is a violation of Section 504 and the ADA to intimidate, threaten, coerce, or discriminate against an individual who has engaged in a protected activity. Protected activities include filing a complaint, testifying, assisting in, or participating in an investigation or hearing under Section 504 or the ADA. The key elements in a complaint for retaliation are:
1. The person making the retaliation claim engaged in a protected activity (they asserted a right, filed a complaint, testified, assisted or participated in an investigation or hearing under Section 504 or the ADA);
2. The entity that it is alleged to have retaliated knew the person engaged in a protected activity;
3. That entity took some action against the individual making the complaint and that action was at the same time that individual engaged in the protected activity; and
4. A causal connection can be reasonably inferred between the retaliatory action taken by the entity and the person engaging in the protected activity.
A good example of retaliation is the Ninth Circuit Court of Appeals case of Settlegood v. Portland Public Schools . In that case, Pamela Settlegood was hired by the Portland Public Schools as an adapted P.E. teacher, on a probationary basis, to teach students with disabilities in various schools in the school district. She soon became concerned about how her students were treated. As an itinerant teacher, she had trouble finding a place to teach her students, she often lacked material and equipment, and the equipment she did find was often inadequate and unsafe. After she complained in writing to her supervisors that her students were not getting services they were entitled to under the IDEA and Section 504, her evaluations became more negative and her probationary contract was not renewed.
Ms Settlegood then successfully sued the school district for retaliating against her for trying to protect the rights of her students with disabilities. She was able to show that (1) she engaged in a protected activity (aggressively complaining about the lack of appropriate services and equipment for her students with disabilities); (2) the school district knew she had engaged in that activity; (3) the school district took action against her by school personnel giving her poor evaluations and not renewing her contract; and (4) it can be reasonably be inferred that her poor evaluations and the non renewal of her contract was caused by her efforts to enforce the rights of her students with disabilities.
As noted, individuals with disabilities and their family members who depend on others for services, are often reluctant to enforce their rights because they fear their services might be terminated or reduced. Anti- retaliation legislation deters agencies from retaliating against individuals who try to enforce their civil right and helps assure individuals that they may safely pursue their rights without risking losing their services. For more information about the ADA, Section 504, protection from retaliation and how to file complaints see the Office for Civil Rights (OCR) within the Department of Education, OCR within the Department of Health and Human Services, and the Equal Employment Opportunity Commission. Some states also have laws protecting individuals with disabilities from retaliation, so it might be important to check your state statutes.
Filed under: Americans with Disabilities Act, children with disabilities, early intervention and part C, Individuals with Disabilities Education Act, Section 504, Special Education Law | 22 Comments »