In Bien-Aime v. Equity Residential, 2017 U.S. Dist. LEXIS 25036 (S.D.N.Y. Feb. 22, 2017), the Southern District of New York denied an employer’s motion for summary judgment on an Americans with Disabilities Act (“ADA”) retaliation claim even though the employee had not been fired and had not had his hours, benefits, job title or pay changed.

In this case, the employee alleged that his employer retaliated against him for filing a complaint of disability discrimination with the New York State Division of Human Rights (“NYSDHR”). The employee testified that after he filed the NYSDHR complaint: (1) one manager “stopped saying good morning to him” and “spoke to him without a ‘warm welcome’ in his voice,” (2) another manager “continually monitored his work” and asked him about two instances in which he worked overtime without approval, and (3) they both “treated him like a criminal.”

The employer moved for summary judgment, arguing that the employee had not suffered an adverse employment action, which is necessary to prevail on an ADA retaliation claim. However, the Southern District of New York found that the definition of “adverse employment action” is broader for retaliation claims than for discrimination claims. Different from discrimination claims, in the context of an ADA retaliation claim, an adverse employment action is any action that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

The court thus denied the employer’s motion for summary judgment because “[w]hen considering the record in the light most favorable to [the employee], as the Court must, a rational juror could find that [the managers’] negative treatment of [the employee] after he filed the NYSDHR complaint could dissuade a reasonable worker from complaining of discrimination.”

If you recently complained of discrimination and are now being treated differently than your coworkers and differently than the way you were being treated before you complained, we recommend consulting with a New York employment attorney as soon as possible to explore all of your rights under the law.

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