Dive Brief:

• Two Kentucky school employees engaged in activity protected by the Americans with Disabilities Act (ADA) when they advocated for students with disabilities, the 6th U.S. Circuit Court of Appeals held, reviving their lawsuit (Kirilenko-Ison et al. v. Board of Education of Danville Independent Schools, No. 19-5767 (6th Cir., Sept. 4, 2020).
• The women clashed with school officials and the students’ parents over the treatment and proper school activities for two students with diabetes. They sued their former employer, the Board of Education of Danville Independent Schools, and a district court dismissed their claims. One of the plaintiffs failed to show a causal connection between her protected activity and the school board’s failure to rehire her, the court said; the other plaintiff failed to demonstrate a factual dispute as to whether the school board’s reasons for suspending her were a pretext for retaliation, it concluded.
• On appeal, the 6th Circuit said the case was similar to those in which "courts have found that a plaintiff engaged in protected activity by challenging the school’s deficient administration of a free appropriate public education" and reversed the lower court’s decision, allowing the claims to proceed.

Dive Insight:

The ADA forbids employers from retaliating against a person who has opposed any act or practice made unlawful by the federal law or because an individual has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under the federal law. In general, when workers complain about discrimination or harassment or participate in an internal investigation into alleged misconduct, they are engaging in protected activity. The appeals court in this case noted that it and other courts have held that advocating for members of a protected class is a protected activity.

Notably, an employer's response to a complaint can be deemed unlawful retaliation even if an employee's complaint is later revealed to be unfounded. For example, an employee fired after complaining of discrimination was ultimately unable to prove bias but was allowed to proceed with a retaliation claim last year.

But even when employees have clearly engaged in protected activity, they are not insulated from legitimate discipline. While experts previously told HR Dive it can be risky to dole out discipline in close temporal proximity to protected activity, they also said it needs to be done to prevent future claims of disparate treatment. HR can assist by thoroughly documenting all disciplinary actions.