The ADA further prohibits employers from interfering with the exercise of protected ADA rights, and makes it unlawful to coerce, intimidate, threaten or interfere with the exercise of protected rights.2 FEHA also protects individuals from discrimination and/or retaliation for asserting protected disability rights.3

To determine when an individual has been the victim of retaliation, courts generally use the same burden shifting framework they use in other discrimination cases.4 First, plaintiffs must establish their prima facie case raising the inference of retaliation. Then the burden shifts to the employer to show a legitimate reason for taking an adverse action against an employee. If the employer can show a legitimate reason for the action, then the burden shifts to the employee to prove that the employer's reason served as a pretext for an unlawful act.5 But the ADA also has an anti-interference provision, which, according to the Ninth Circuit Court of Appeals, permits a finding of liability that eases a plaintiff’s burden of proof.

In one case, the plaintiff suffered from severe depression and requested accommodations from her employer that relieved her of certain duties, but she was later terminated for failing to meet performance standards. Following termination, she complained that several of her supervisors’ adverse actions of several violated the ADA’s anti-retaliation and anti-interference provisions.

But the plaintiff couldn’t prove that her failure to meet performance standards was a pretext for her termination, so the court held that she couldn’t prevail in her retaliation claim. The supervisors’ conduct, however, did amount to intimidation and coercion, so the court allowed the interference claim to proceed to a jury and the plaintiff was allowed to pursue compensatory and punitive damages against her employer despite having cause for her termination.6

1. 42 U.S.C. 12203(a)