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12.9 ADA—Retaliation

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It is unlawful for a person or entity to discriminate against any individual because that individual has opposed any act or practice that he or she reasonably believes to be unlawful under the ADA or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA. 

Disability is not an element of a retaliation action under the ADA. 

For the plaintiff to establish retaliation in violation of the ADA, the plaintiff must prove the following elements by a preponderance of evidence: 

1. the plaintiff [engaged] [was engaging] in conduct protected under the ADA;

2. the plaintiff was subjected to an adverse employment action at the time, or after, the protected conduct occurred;

3. the defendant [specify adverse action] the plaintiff because of [his] [her] conduct protected under the ADA. 

If you find that the plaintiff has proved each of these elements, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. 


The Ninth Circuit applies the Title VII framework for retaliation claims. Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir.2000) (en banc) (adopting test and stating elements), vacated on other grounds, 535 U.S. 391 (2002). See Instruction 10.11 (Civil Rights—Title VII—"Adverse Employment Action" in Disparate Treatment Cases). See also Burlington No. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (holding that under anti-retaliation provision of Title VII, plaintiff must show that reasonable employee would have found challenged action materially adverse, which in this context means it might have "dissuaded a reasonable worker from making or supporting a charge of discrimination.") 

The Supreme Court has held that, in a retaliation claim under Title VII, a plaintiff "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). The Court found that the "because" language in the anti-retaliation provision (42 U.S.C. § 2000e-3(a)) lacked any meaningful textual difference from the analogous statutory provision in the ADEA at issue in Gross v. FBL Financial Services, 557 U.S. 167, 180 (2009). Nassar, 133 S. Ct. at 2528. The Ninth Circuit has applied Nassar to ADA retaliation claims. T.B. v. San Diego Unified Sch. Dist., 795 F.3d 1067, 1088 (9th Cir.2015), decision amended and superseded on denial of rehearing, 806 F.3d 451, 473 (9th Cir. 2015), cert. denied, 136 S. Ct. 1679 (2016)

Plaintiff’s reasonable belief that the action opposed is unlawful is sufficient to allow a retaliation claim. See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir.1994) (involving Title VII claim). 

See 29 C.F.R. § 1630.12(a) (1999) (explaining retaliation and coercions); 42 U.S.C. § 12203(a) (defining retaliation). 

Because 42 U.S.C. § 12203(a) applies to "any individual," the plaintiff need not prove disability within the meaning of the ADA to sustain a retaliation claim under the ADA. Barker v. Riverside Cnty. Office of Educ., 584 F.3d 821, 827-28 (9th Cir.2009). The "ministerial exception" precludes application of § 12203(a) to the employment relationship between a religious institution and its ministers. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 705 (2012).