Chapter 5 - § 5.8 • ARE INDIVIDUALS PROTECTED FROM RETALIATION?

• Jurisdiction: Colorado

§ 5.8 • ARE INDIVIDUALS PROTECTED FROM RETALIATION?

The ADA prohibits any person from retaliating against an individual who has "opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). Additionally, the Tenth Circuit has held that an employer may not retaliate against an employee for making an adequate request for accommodation sufficient to qualify as protected activity. Pittman v. Am. Airlines, Inc., 692 F. App'x 549, 552 (10th Cir. 2017). Although the notice or request for accommodation does not have to be in writing, be made by the employee, or formally invoke the magic words "reasonable accommodation," it nonetheless must make clear that the employee wants assistance for his or her disability. Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1188 (10th Cir. 2016). A notice to the employer of the need for an adjustment due to a medical condition suffices. Id.

While a plaintiff need not show that he or she suffers from an actual disability in order to succeed on an ADA retaliation claim based on a request for accommodation, the plaintiff must show that he or she had a reasonable, good-faith belief that he or she was disabled. Mestas v. Town of Evansville, No. 17-8092, 2019 U.S. App. LEXIS 26920, at *6-7 (10th Cir. Sep. 6, 2019).

To establish a prima facie case of retaliation, "[a] plaintiff must show (1) protected employee action; (2) adverse action by an employer either after or contemporaneous with the employee's protected action; and (3) a causal connection between the employee's action and the employer's adverse action." Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997) (citing...