3 Factors that May Signal ADA Retaliation — and How to Respond

EVIDENCE 

POTENTIAL RESPONSE 

The timing of the adverse action is suspicious. 

The closeness in time of an employee’s protected activity may show or help show retaliation. 

Even if there is a very short timeframe between the two events, such as a couple of days, the employer can respond with evidence that the two are not connected.  

For example, the employer might point to a significant intervening event. This could be the employee’s violation of company policy between the time of the protected activity and the adverse employment action. If the employer can show it took the adverse action because of that intervening event, it may be able to overcome the temporal proximity of its adverse action and the worker’s exercise of her ADA rights. 

The employer's explanation has shifted or been inconsistent. 

If an employer provided varying or inconsistent reasons for taking the adverse employment action, that could be used as evidence of retaliation. 

There could be other, valid reasons for providing varying bases for the employer’s action—and if that’s the case, the employer may want to articulate those reasons. 

One circumstance an employer could point to overcome this evidence is the fact that the actual company employees who made the decision to take the adverse employment action were consistent in their explanation. Even if someone else in the company, such as a company official who filled out an unemployment benefits form, states a different reason in a written document, the employer can point out, if appropriate, that the official was not involved in the decision, and that his statement was merely an error.  

An employer could also argue that there were in fact varying reasons for the action that it took, and therefore it was appropriate to provide multiple lawful reasons for its action. This may be more difficult if there is evidence that the employer flip-flopped regarding its reasons. 

The employer’s explanation was pretextual. 

Essentially, this means the employer was being disingenuous—or, in less diplomatic terms, lying. 

The employer can respond with evidence that the individual or individuals who articulated the reason for the adverse employment action truly believed it. The issue, after all, is not whether the reason given is objectively true, but whether the company genuinely believed it to be true.