Can Denying a Raise Be Retaliation under the ADA?

An example of a potential ADA violation would be an employee who is being treated for post-traumatic stress disorder (PTSD) resulting from incest who requests reasonable accommodation. Her supervisor then tells the employee’s co-workers about her medical condition.

The employee tells the supervisor she intends to complain to HR about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.

There’s likely a double violation here. As the ADA prohibits retaliation or interference with an employee’s exercise of his or her rights under the statute, the denial of the raise would likely be considered impermissible retaliation, and since the ADA prohibits disclosure of confidential medical information, the disclosure would also be a violation..

What are some examples of other employment decisions that may violate the ADA and involve applicants or employees who experience domestic or dating violence, sexual assault or stalking?

The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking. For example:

• An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.
• An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.

The ADA may require employers to provide reasonable accommodation requested for an actual disability or a "record of" a disability. An actual disability is a physical or mental impairment that substantially limits one or more major life activities (which include major bodily functions). A "record of" a disability is a past history of a substantially limiting impairment. An impairment does not need to result in a high degree of functional limitation in order to be "substantially limiting." Examples of situations in which reasonable accommodation should have been considered:

• An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it "applies leave and attendance policies the same way to all employees."
• In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its "no transfer" policy.

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