Section 12203 - Prohibition against retaliation and coercion

10 Analyses of this statute by attorneys

  1. Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. Dec. 11, 2009)

    Outten & Golden LLPDecember 10, 2009

    The Ninth Circuit joins the Seventh Circuit in holding that the ADA anti-retaliation section, 42 U.S.C. § 12203, provides only for equitable remedies and hence no jury trial.Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. Dec. 11, 2009): Alvarado filed a retaliation claim under the Americans with Disabilities Act (ADA) alleging that the company fired him for complaining to his manager about disability discrimination. The district court held, granting a motion in limine prior to trial, that the remedy section governing ADA discrimination claims, 42 U.S.C. § 1981a(a)(2), did not encompass retaliation claims, and thus the employee could only seek equitable, make-whole relief (including back and front pay, but not compensatory or punitive damages).

  2. Has The Grinch Stolen Wellness Plans This Christmas?

    Jackson Lewis P.C.Patricia Anderson PryorDecember 21, 2018

    Neither the law, nor the remaining regulations, expressly prohibit (or permit) incentives. The remaining regulations provide: An employee health program that includes disability-related inquiries or medical examinations (including disability-related inquiries or medical examinations that are part of a health risk assessment) is voluntary as long as a covered entity: (i) Does not require employees to participate; (ii)Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation, or limit the extent of benefits (except as allowed under paragraph (d)(3) of this section) for employees who do not participate; (iii) Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, codified at 42 U.S.C. 12203; and (iv)Provides employees with a notice that: (A) Is written so that the employee from whom medical information is being obtained is reasonably likely to understand it; (B) Describes the type of medical information that will be obtained and the specific purposes for which the medical information will be used; and (C) Describes the restrictions on the disclosure of the employee’s medical information, the employer representatives or other parties with whom the information will be shared, and the methods that the covered entity will use to ensure that medical information is not improperly disclosed (including whether it complies with the measures set forth in the HIPAA regulations codified at 45 CFR parts 160 and 164). 29 CFR 1630.

  3. Bayer v. Neiman Marcus Group, Inc., No. 15-15287 (9th Cir. June 26, 2017)

    Outten & Golden LLPPaul MollicaJuly 3, 2017

    There followed a third EEOC charge and lawsuit in 2013 - the subject of this post. Mr. Bayer alleged that Neiman Marcus interfered with Bayer's ADA rights in violation of 42 U.S.C. § 12203(b) "by requiring him to consent to be bound by the arbitration agreement as a condition of his continued employment." The district court dismissed this third lawsuit on mootness grounds, because - following the Ninth Circuit's prior decision in Mr. Bayer's second case - the arbitration agreement was not binding on the plaintiff and thus there was no injury to remedy.The Ninth Circuit reverses.

  4. Just What The Doctor Ordered: Court Denies The EEOC’s Motion For Summary Judgment In ADA Suit Regarding Employer’s Wellness Program

    Seyfarth Shaw LLPGerald Maatman, Jr.September 23, 2016

    The EEOC brought suit against Orion alleging it violated the ADA by requiring employees who elect to enroll in Orion’s self-insured health insurance plan to either complete the HRA or pay 100 percent of their monthly premium amount. The EEOC also alleged that Orion violated the ADA’s anti-retaliation provisions, 42 U.S.C. § 12203(a) and (b), by instructing the employee not to discuss her concerns about the legality of this requirement with co-workers and by terminating her employment shortly after she voiced opposition to Orion’s wellness program. Orion contended that its requirement that employees who elect to receive health insurance from Orion either participate in the wellness program or pay the full premium amount was lawful under the ADA’s insurance “safe harbor” provision, which allows self-insured organizations to administer benefits plans, or alternatively, that its wellness program is voluntary under 42 U.S.C. § 12112(d)(4)(B).

  5. EEOC Issues Proposed Wellness Program Amendments to ADA Regulations

    FordHarrison LLPGordon M. BergerApril 23, 2015

    rams the 30 percent cost of coverage limit, which was set under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the ACA to limit the size of incentives under health-contingent programs. This would mean that an employer may offer employees incentives up to a maximum of 30 percent of the total cost of employee-only coverage, whether a reward or penalty, to promote an employee's participation in a wellness program.Definition of "Voluntary" The guidance also clarifies that "voluntary" means that an ADA-covered entity: "(1) does not require employees to participate; (2) does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation or limit the extent of such coverage (except pursuant to allowed incentives); and (3) does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, at 42 U.S.C. 12203."Privacy of Medical Information Further, to ensure that participation in a wellness program that includes disability-related inquiries or medical examinations and is a part of a group health plan is actually voluntary, employers must give participants written notice that clearly explains: what medical information will be obtained, who will receive the medical information, how the medical information will be used, the restrictions on its disclosure, and the methods the covered entity will employ to prevent improper disclosure of the medical information.

  6. Solomon v. Vilsack, No. 12-5123 (D.C. Cir. Aug. 15, 2014)

    Outten & Golden LLPPaul MollicaAugust 18, 2014

    43) that Solomon's job involves 'tight, unpredictable, and firm deadlines,' Solomon answered with evidence that short deadlines are infrequent and, when they arise, can be met with a maxiflex schedule."The panel also reverses summary judgment on Ms. Solomon's retaliation claims, holding (among other things) that the act of requesting in good faith a reasonable accommodation is itself a protected activity under 42 U.S.C. § 12203, which is incorporated into the Rehabilitation Act, per 29 U.S.C. § 791(g).

  7. D.C. Circuit

    Outten & Golden LLPPaul MollicaApril 5, 2011

    Genuine dispute of material fact about whether revocation of permission to work late as retaliation for filing EEO complaint 11 days earlier or for making requests for work-schedule accommodation. Act of requesting in good faith a reasonable accommodation is itself a protected activity under 42 U.S.C. § 12203, which is incorporated into the Rehabilitation Act, per 29 U.S.C. § 791(g). But summary judgment affirmed on removal of privacy curtain at plaintiff's desk, where employee did not furnish evidence of pretext for agency's reason (safety concerns).

  8. Eighth Circuit

    Outten & Golden LLPPaul MollicaApril 5, 2011

    2. Even assuming that retaliation for requesting a reasonable accommodation is actionable under 42 U.S.C. § 12203(a), employee never requested accommodation; never formally requested opportunity to relocate work to home.Fuller v. Fiber Glass Systems, LP, 618 F.3d 858, 110 FEP 176 (8th Cir. 2010). Panel: BENTON, Murphy, Beam.

  9. Eleventh Circuit

    Outten & Golden LLPPaul MollicaApril 5, 2011

    Outcome on Appeal: Affirmed [defendant]. Grounds: Individuals are not amenable to private suit for violating either Title I, 42 U.S.C. §§ 12111-12117, of the ADA or the ADA's anti-retaliation provision, 42 U.S.C. § 12203, where the act or practice opposed by the plaintiff is made unlawful by the ADA provisions concerning employment.Adkins v. Christie, 488 F.3d 1324, 100 FEP 1262 (11th Cir. 2007). Panel: WILSON, Edmundson, Birch.

  10. Eleventh Circuit

    Outten & Golden LLPMarch 18, 2008

    Outcome on Appeal: Affirmed [defendant]. Grounds: Individuals are not amenable to private suit for violating either Title I, 42 U.S.C. §§ 12111-12117, of the ADA or the ADA's anti-retaliation provision, 42 U.S.C. § 12203, where the act or practice opposed by the plaintiff is made unlawful by the ADA provisions concerning employment.Adkins v. Christie, 488 F.3d 1324, 100 FEP 1262 (11th Cir. 2007). Panel: WILSON, Edmundson, Birch.