Abstract
Qualified teachers with disabilities are protected by the Americans with Disabilities Act (ADA). To maintain legal compliance, principals must have an understanding of employment law, but often lack the training to prevent legal liability. This study reviewed litigation on discrimination claims under the ADA and Section 504 of the Rehabilitation Act. Discrimination claims included failure to accommodate, adverse employment action, wrongful termination, and constructive discharge. Authors analyze results and discuss implications for future research and practice.
The Americans with Disabilities Act (ADA) enacted in 1990 has been instrumental in ensuring that individuals with disabilities have a legal recourse to address discrimination in all aspects of public life. In 2018, there were an estimated 40,637,764 individuals with disabilities in the United States representing 12.6% of the total civilian noninstitutionalized population. American Indian and Alaska Natives (16.9%) and Black or African Americans (13.8%) experienced the highest prevalence rates of disability; prevalence rates by disability were 6.85% with an ambulatory and 5.1% with a cognitive disability (U.S. Census Bureau, n.d.-a). According to findings of the ADA Amendments of 2008, individuals with disabilities still face discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities. (Section 12101 [a])
Furthermore, in amending ADA in 2008, Congress clarified and broadened the term disability, resulting in the increase in numbers and types of individuals covered under ADA and other federal nondiscrimination laws. Specifically, although the law maintained the basic definition of disability as an impairment that substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment, it also modified key provisions to broaden eligibility. Specifically, eligibility determinations must be made without considering the ameliorative effects of mitigating factors; similarly, the definition of “major life activities” was expanded to include major bodily functions (Rozalski et al., 2010).
A key tenant of the law has been the opportunity for individuals with disabilities to have a legal recourse to address discrimination. The law provides that no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. (ADA 42 U.S.C. § 12203, 2012; see also, U.S. Equal Employment Opportunity Commission, 2016)
Yet discrimination practices still occur, particularly in employment. In such cases, under ADA, an individual with a disability must establish that he or she engaged in protected activity and suffered an adverse employment action; they must also establish causation (i.e., that the protected activity caused the adverse employment action). Examples of ADA-related retaliation include terminating employment or denying promotion, threatening/negative evaluations, unjustified negative references, increased surveillance/monitoring of the employee, and making unfounded charges as a means to deter reporting. In 2017, of the 20,444,249 individuals with disabilities aged 18 to 64 years, 7,572,805 (37%) individuals were employed (Lauer & Houtenville, 2019). Teachers with disabilities in the teaching workforce (about 3.5 million) represent an estimated one in four of those employed (about 900,000; Centers for Disease Control and Prevention, 2020).
The teaching profession faces insurmountable challenges, including declining enrollments in institutions of higher education, chronic shortages faced by school districts, and high rates of attrition (Garcia & Weiss, 2019). Promoting inclusive employment practices for teachers with disabilities may offer a solution to these shortages, as qualified teachers with disabilities may be able to fill these positions. However, little is known about inclusive, school-based employment practices or the discrimination teachers with disabilities experience in their employment. Consequently, the purpose of this review is to examine discrimination cases involving teachers with disabilities. We sought to answer the following questions: (a) to what extent have teachers with disabilities litigated discrimination claims against their employer? (b) what claims of discrimination were brought? and (c) how did the courts rule on these claims?
Method
Cases were located by searching Lexis+ The initial search cross-referenced “teacher,” AND “elementary school” OR “middle school” OR “high school,” AND “ADA” OR “Americans with Disabilities Act” OR “Section 504” OR “Rehabilitation Act.” No time restrictions were placed on this search. The initial search produced 885 results.
Inclusion Criteria
To be included in this study, cases had to include (a) a P-12 setting, (b) a teacher with a documented disability, and (c) a claim of discrimination on the basis of the disability (e.g., adverse employment action, constructive discharge). Cases were excluded if they (a) included school administrators, long-term substitute teachers, or paraprofessionals; (b) only addressed protected activity (e.g., advocating for special education students, which is a protected activity under the ADA); (c) only addressed the perceived disability of the teacher (e.g., perceived as disabled due to a history of seizures, obesity, etc.); (d) the disability was found to be unsubstantiated by the district or court; or (e) cases were dismissed due to procedural errors (e.g., failing to meet a filing deadline). Case briefs were excluded if they were unpublished opinions, or had a negative Shepardized outcome (i.e., future cases changed the outcome of the interpretation of the law). For each case, researchers analyzed the highest court’s brief to determine case characteristics. If the search produced briefs from a district court and a circuit court for the same case, the lower court (i.e., the district court) brief was excluded, and the circuit court brief was included in the review.
Case Coding
To identify patterns in litigation the authors coded for year, school level (e.g., elementary school), court level (e.g., state courts, district, and circuit courts), and location. Authors also coded for the assigned school and grade level, teacher gender, teacher area of certification, and disability. Legal principle (e.g., ADA, Section 504) and related legislation (e.g., Family Medical Leave Act, Age Discrimination in Employment Act) were also coded. Additionally, authors recorded the reason for claims of discrimination and retaliation. Finally, authors assessed court ruling and remedies granted.
Interobserver Agreement (IOA)
To ensure the reliability of the coding and demonstrate the rigor of our legal research, authors reviewed 16% of cases for IOA. IOA was calculated by dividing the total number of agreements by the total number of variables and multiplying by 100. IOA was 92% agreement for inclusion. Disagreements were discussed and researchers came to consensus. Next, each case was coded for school demographics, teacher disability, requested accommodations, legislation, claims, and ruling. Case coding IOA was calculated by dividing the total agreement by the total number of variables, the initial IOA was 92%, disagreements were discussed, and researchers came to consensus.
Results
The search produced 116 cases that met the inclusion criteria and assessed discrimination under Section 504 of the Rehabilitation Act or the ADA. Cases were primarily held in federal courts (n = 110); 21 cases had been heard in circuit courts, and 89 cases had been heard in district courts. The remaining cases were held in state courts. The sixth circuit had the most cases (n = 5), followed by the second (n = 4), and the eleventh (n = 4). Table 1 shows a breakdown of cases by court level and circuit.
Court Level for Included Cases.
Of the 116 plaintiffs, 91 were female and 26 were male. Plaintiffs represented 91 different disabilities; the most common disabilities were depression (n = 13), anxiety (n = 9), visual impairment (n = 8), attention deficit disorder or attention deficit-hyperactivity disorder (n = 7), deafness (n = 7), and diabetes (n = 7). A list of teacher disabilities is provided in Table 2. The case brief did not specify the teacher license in 28 cases; the most common license was special education (n = 20), followed by English (n = 11) and science (n = 8). The majority of plaintiffs were elementary school teachers (n = 42), followed by high school (n = 37), and middle school (n = 36).
Teacher Disabilities.
Claims were brought under the ADA (n = 95), Section 504 of the Rehabilitation Act (n = 26), and state disability or civil rights laws (n = 21). There were a variety of discrimination claims under the ADA or Section 504 of the Rehabilitation Act. The most common claim was failure to accommodate a disability (n = 91). The plaintiff won the case in 41 cases, and the defendant won in 50 cases. Additional claims included adverse employment action (n = 37), wrongful termination (n = 26), and constructive discharge (n = 21). Disparate treatment claims were brought in 21 cases. Claims were also brought for a hostile work environment (n = 20). Table 3 outlines each of the claims and ruling.
Discrimination Claim and Ruling.
Note. ADA = Americans with Disabilities Act.
Adverse Employment Action Claims
Adverse employment action claims were brought in 37 cases. Adverse employment action refers to a “materially adverse change in the terms and conditions of employment . . . [that is] more disruptive than a mere inconvenience or an alternation in job responsibilities.” (Galaby v. N.Y.C. Board of Education, 2000). In these cases, 21 courts ruled for the defendant and 16 ruled for the plaintiff. Cases ruled for the defendant involved an adverse action not tied to the disability (e.g., Moore-Fotso v. Board. of Education of Chicago, 2016), or when the action did not materially change the conditions of employment (Blair v. L.I. Child & Family Dev. Services, 2017). Cases ruled for the plaintiff when actions were pretextual—meaning that their actions were a false reason for giving adverse employment action (e.g., Ross v. Board of Education, 2007)—and when the adverse action was clearly tied to disability (e.g., Risser v. Steelton-Highspire School District, 2019).
Illustrative Cases
The Solomon v. Southampton Union Free School District (2012) involved an African American special education teacher, Solomon, with Temporomandibular Joint Disorders. Solomon alleged discrimination and retaliatory action based on disability in addition to Title VII violations based on race color and gender. Specifically, Solomon based her allegations on remarks by the principal in a meeting and a memo she perceived as derogatory; requirement to share a room with another teacher; transfer to another school; being instructed not to work on her dissertation during school hours; failure to being assigned to a homework club; and a request for medical documentation for requested sick leave. In contrast, the principal argued that Solomon had received poor evaluation based on excessive absences and failure to provide adequate lesson plans for substitute teacher according to the district. The 2nd Circuit affirmed the district’s court ruling for summary judgment for the district, concluding that the teacher failed to provide evidence that the district’s alleged actions were in fact discriminatory under Title VII and ADA or retaliatory. For example, transfer to another school and directed not to work on her dissertation during school hours did not alter terms of employment, and the remarks made and memo written by the supervisor did not result “in a materially adverse change terms or conditions of her employment.”
Similarly in Moore-Fotso v. Board of Education of Chicago (2017), the court granted the school district summary judgment. Moore-Fotso suffered from multiple chronic medical conditions that affected her ability to stand or sit for extended periods of time, use stairs, or be confined to rooms with carpeting or dust. The plaintiff was provided with technology related accommodations (e.g., dictation software, a printer, a scanner, etc.), whiteboards, and air purifiers with filters in each of her classrooms, although she did not receive the one-room accommodation, she requested. Pursuant to district policy, she was terminated after receiving an unsatisfactory rating in her annual evaluation for being frequently absent and tardy, failure to provide lesson plans, and failure to establish a positive environment for students. During the following year, she was placed in Chicago’s Reassigned Teacher Pool and after failing to secure a permanent position, she worked as a substitute. The court concluded that Moore-Fotso did not meet the essential functions of the job because of her frequent absences and tardiness. The court also concluded that the district did not fail to engage in the interactive process regarding reasonable accommodations and the adverse actions by the school were not linked to her disability.
In contrast, in Barnett v. School District of Lancaster (2015), the court ruled in favor of the teacher, a 57-year-old recovering alcoholic. In 2008-2009, Barnett worked as a long-term substitute teacher receiving an outstanding evaluation. The following year Barnett was hired in a permanent position as a learning support teacher and would have been eligible for tenure after the probationary 3-year term if she performed at a satisfactory level. During the first 2 years, she received satisfactory and proficient evaluations including an evaluation at the beginning of her third year. However, within a month of informing the principal that she was a recovering alcoholic, she received an unsatisfactory evaluation with references to significant and persistent deficits. Barnett disagreed with the evaluation, prepared an improvement plan, and requested input from the principal—though the principal never provided any. Furthermore, at a later meeting with a union representative, the principal, and the director of Human resources, she was pressured to resign and threatened to be reported to the PA Department of Education (i.e., requesting revocation of her teaching certificate) unless she resigned. In light of these threats, Barnett submitted an irrevocable resignation. A letter of agreement between the district and the union specified that Barnett would receive a satisfactory rating, purge the unsatisfactory evaluation, and that the district would not report her to the department of education. Barnett alleged violations of her 14th Amendment rights, violation of the Age Discrimination in Employment Act, and the ADA among others. The court denied summary judgment requested by the district related to ADA, observing that Barnett’s disability disclosure triggered the negative evaluation and related adverse actions (e.g., pressure to resign and the threat of reporting her to PA department of education).
Wrongful Termination and Constructive Discharge Claims
Title I of the ADA prevents employers from using discriminatory practices when discharging employees with disabilities (ADA 42 U.S.C. Section 12112[1], 2012). When a plaintiff alleges wrongful termination under the ADA, they argue that the termination occurred because of the disability. Constructive discharge claims represent a type of wrongful termination, where the employer creates an intolerable work environment that causes the plaintiff to resign (Bristow v. Daily Press, Inc., 1985). Plaintiffs brought wrongful termination claims in in 26 cases. The court ruled for the defendant in 17 cases, and for the plaintiff in nine cases. Cases ruled for the defendant when the termination was not tied to the disability (e.g., Williams v. Monroe City School Board, 2014) or when the teacher was not otherwise qualified to perform the essential functions of the position (e.g., Roark v. LaGrange School District 105, 2012). Similarly to adverse employment action, termination claims ruled for the plaintiff when they proved that the termination was tied to the disability (e.g., Whitney v. Board of Education, 2002), or the action was pretext for discrimination (e.g., Hansen v. Jerome Joint School District, 2012).
There were 21 constructive discharge claims; 14 ruled for the defendant, while 7 ruled for the plaintiff. Constructive discharge claims ruled for the defendant when the teachers could not prove the intolerable work environment (e.g., Wilson v. Board of Education, 2013) or when the teacher was not otherwise qualified to perform the essential functions of the position (e.g., Petrone v. Hampton Bays Union Free School District, 2013). The court ruled for the plaintiff when teachers proved that the district’s action was tied to their disability (e.g., Chavez v. Waterford School District, 2010) or that the district’s action was pretext for discrimination (e.g., Smith v. Public Schools of Northborough-Southbourgh Massachusetts, 2015).
Illustrative Cases
In Miller v. Greenville County School District (2014), the teacher Miller, alleged discrimination in violation of ADA, Section 504 of the Rehabilitation Act and Title VII of the Civil Rights Act of 1964. The teacher was dismissed in light of requests to be late in arriving at school because of her ADHD (though no supporting physician’s diagnosis was submitted), requests for changes involving the Performance Assessment for Teachers without a valid reason, inability to establish a climate of trust in her classroom, unprofessional verbal and e-mail communications, and repeated insubordination (failing to meet with her principal and submit her teaching portfolio). The court ruled in favor of the school district, concluding that Miller did not perform her job as expected and the district did not discriminate based on her disability as her performance was judged inadequate by several evaluators and dismissal was independently reviewed by the superintendent and the school board. Furthermore, the district was aware of her disability when she was recommended for reemployment, thus creating an inference that discrimination was not the determining cause for dismissal.
Similarly, in Yeung v. Loudoun County Public Schools & Wayne Griffith (2003), the teacher, Yeung, alleged violations under ADA involving failure to provide reasonable accommodations and wrongful termination. Yeung suffered from fibromyalgia which impaired her physical mobility. On being hired to teach American Sign Language, she requested a single classroom, but she was assigned to two classrooms. In light of two observations early in the school year, concerns surfaced about her teaching including the need for her students to use American Sign Language, varying teaching activities, pacing, and better use of class time. Two additional observations in November pointed to the need for improvement using correct oral and written expression, stimulating student interest, organizing presentations, and classroom management. Additional observations pointing to teaching concerns (e.g., the need for improved classroom management, stimulating student interest, and organizing presentations), and a class incident in which she became frustrated with class, yelled at her students using profanity and slammed the door led to submitting her resignation. The court ruled that the request for a single classroom was unreasonable in light of the class schedule and the seniority system used to assign classrooms. Second, regarding the termination, the court ruled that Yeung failed to establish that the district did not accommodate her as she was observed several times, pointing to an investment by the district to improve her teaching. Finally, Jeung could not establish a wrongful discharge claim as she could not demonstrate that she was performing as expected at the time.
In contrast, in Fields v. Trollinger (2011), the court ruled in favor of the teacher, Fields, a language arts teacher employed since August 2006. On January 26, 2009, Fields experienced a dissociative event due to major depressive disorder following the death of a friend and was admitted for in-patient mental health care for 2 weeks. At a meeting with the principal following discharge, Fields informed him that she was scheduled to participate in intensive out-patient mental health care for 3 more weeks and intended to return to work following treatment completion. In response, the principal allegedly stated that Fields had lost credibility in the community because of her mental illness and she would not be allowed to return to work. The principal also suggested that she resign and apply for teaching positions elsewhere. Threatened with dismissal and negative record, Fields signed a resignation letter provided by the principal. The court ruled in favor of Fields, concluding that her complaint substantiated ADA discrimination, retaliation, and failure to accommodate.
Disparate Treatment Claims
A disparate treatment claim suggests that the employer treated the plaintiff differently than similarly situated peers. To prove disparate treatment under the ADA, the plaintiff must show: (1) he or she suffers from a disability; (2) he or she is qualified for the job; (3) he or she was subject to an adverse employment action, and (4) he or she . . . was treated less favorably than nondisabled employees.
Disparate treatment claims were brought in 21 cases; 17 ruled for the defendant and 4 ruled for the plaintiff. The court ruled for the defendant when the plaintiff could not prove adverse action (e.g., Powell v. Department of Education of New York., 2018) or when the plaintiff failed to prove that the action was tied to the disability (e.g., Piepho v. Columbus City Schools, 1998). In contrast, the plaintiffs won when they proved that the adverse action was connected to their disability (e.g., Konrath v. Amphitheater Unified School District No. 10, 2007) or when the actions were pretextual for discrimination (e.g., Solomon v. School District of Philadelphia, 2012).
Illustrative Cases
In Gauthier v. Waterloo Community School District (2007), the teacher Gauthier made claims of disparate treatment, harassment, and retaliation on the basis of disability in violation of ADA. Gauthier, legally blind, served as a kindergarten ESL teacher since 2001. In February 2002, the principal expressed concern over Gauthier’s vision problems, which may have played a part in failing to appropriately deal with a playground and a classroom incident. In the ensuing months, the principal made numerous comments that Gauthier felt were inappropriate and demeaning (e.g., comments pertaining to her handwriting, playground supervision); the principal also recommended third year mentoring support, which Gauthier found to be unnecessary.
Eventually, Gauthier filed a discrimination complaint; the associate superintendent responded, pointing to communication problems in the school. The response indicated that the principal’s interactions were not intended to be demeaning or offensive, and if any future incidents occur, Guathier should discuss them with the principal first, and if not satisfied, then with another district official. In the following year, Gauthier pointed to a number of incidents which belittled her in front of students and peers (e.g., referring students for disciplinary actions). Gauthier next filed a complaint with the Iowa Civil Rights Commission. The commission issued a Notice of Right to Sue to Gauthier, who had already been reassigned to another school.
The court ruled against Gauthier concluding that the district did not discriminate against her as there was no evidence of adverse employment actions (e.g., change in pay or benefits) and the district followed through with requested accommodations. Furthermore, regarding the interactions with the principal and the associated allegations of hostile environment, the court ruled that these actions may best be viewed as “poor principalship but not discrimination.” Notably, transfers from one job to anther are not an adverse employment action if they involve minor work changes or minor reduction in pay or benefits, as antiretaliation provisions protect an individual not from all retaliation, but rather from retaliation resulting in injury or harm.
In contrast, in Schumacher v. Souderton Area School District (2000), the court ruled in favor of the teacher, Schumacher, concluding that she had been subjected to unlawful discriminatory practices. Schumacher, a 51-year-old with Attention Deficit Hyperactivity Disorder, had been employed by the district as a math teacher for 12 years. Following disclosure of her disability in May of 1996, she was transferred from teaching math to teaching geography at the middle school for the 1997-1998 school year. In addition, the district did not allow her to attend seminars in math and did not consider or hire her as a math teacher, though she was qualified. Additional retaliation actions included compelling her to come to work while ill, interfering with her teaching duties and failing to provide her with the materials, time, and space, to perform her job led to a discrimination suit. The court ruled that these actions constituted unlawful discriminatory practices.
Hostile Work Environment Claims
Plaintiffs bringing a hostile work environment claim must show evidence that, (1) the work environment was both objectively and subjectively offensive; (2) the harassment was based on membership in a protected class or in retaliation for protected behavior; (3) the conduct was severe or pervasive; (4) there is a basis for employee liability. (Boss v. Castro, 2016)
There were 20 hostile work environment claims; 16 ruled for the plaintiff, while 4 ruled for the defendant. The court ruled for the defendant when the teacher failed to show the connection between the action and their disability (e.g., rude and aggressive comments from supervisors were not about the plaintiff’s disability; Blair v. L.I. Child & Family Development Services, 2017), or if the action was not sufficiently hostile to be considered severe or pervasive (e.g., Coffey-Sears v. Lyons Township. High School District 204, 2017). The court ruled for the plaintiff when actions could be considered pretextual; for example, when a teacher was disciplined for not attending a meeting in an inaccessible location (e.g., Martel v. Evangeline Parish School Board, 2012). The court also ruled for the plaintiff when the plaintiff clearly proved the harassment was connected with the disability (e.g., Huff v. Quakertown Community School District, 2017).
Illustrative Cases
In Martel v. Evangeline Parish School Board (2012), Martel, a third grade teacher, reported a physical disability resulting to confinement in a wheelchair/motorized scooter. Martel was allowed to use the newer kindergarten bathroom that was accessible and received preferential parking closer to school. Some barriers were removed to allow for easier access to the building where the cafeteria, library, and teacher lounge were located. In October, the assistant principal expressed teaching performance concerns following an observation. These concerns were also attested by the principal and eventually Martell was placed under an Intensive Assistance Plan designed to assist a teacher in need of improving unsatisfactory performance. In the following years, Martel was transferred to other schools where she received accommodations involving closer proximity to a bathroom, bathroom retrofitting to ensure accessibility, and a covered parking spot. Martel alleged discrimination against the district for failing to provide reasonable accommodations, creating a hostile environment, and disparate treatment. The court ruled in favor of the district regarding the disparate treatment but denied summary judgment regarding hostile work environment and failure to provide reasonable accommodations.
Similarly in Huff v. Quakertown Community School District (2017), Huff accepted an administrative position as a special education supervisor; stress associated with this position resulted in anxiety attacks, hospitalization, and regular mental health treatment. Furthermore, his request for return to his original position was granted and he served as the regular education/cyber education teacher at Quakertown High School before he was transferred to the middle school. At the middle school, he was offered a position in special education, though he refused to take it because of his anxiety problems. He was assigned to the position anyway, was placed under a performance improvement plan, and was subjected to unannounced observation visits. On return, he requested transfer to a regular classroom position; physician’s orders also called for part-time if he were to continue in his assignment to special education. The school district assigned Huff to the part-time position with a significant pay cut, which Huff accepted though he did not consider it to be a reasonable accommodation. The court ruled that the work environment was sufficiently hostile as Huff remained in the performance plan and was subjected to frequent and unannounced observations, a scrutiny not directed to other teachers.
In contrast, in Jordan v. School District of Philadelphia (2012), Jordan, suffering from depression, anxiety, and posttraumatic stress disorder, was first employed at the district in 2000. Jordan received satisfactory performance reviews and no disciplinary actions until 2007-2008. In the 2007-2008 school year, her depression worsened, she failed to submit grades, and was absent from school on extended sick leave from March 10 to end of the year. A memo sent to her at the end of the year called for a meeting on her return in the new school year to discuss infractions such as grade submission, cell phone use, and lesson plans. At the end of the 2007-2008 year, Jordan was reassigned to a second grade class due to concerns about consistency in the academic and instructional program for the fourth grade students, who take state standardized tests.
On return in September, she worked for 5 days (arriving late on 3 of those days) and then went on sick leave, committed herself to a mental health care facility, and then eventually to a “restoration to health sabbatical” until the end of the school year. For the 2009-2010 school year, Jordan was reassigned to a health prep position; soon after, she received three incident reports as she “signed in” earlier than her arrival time. She was eventually terminated in light of falsifying “sign in” records; also, Jordan was absent 78.5 days during the 2007-2008 school year and 186 days during the 2008-2009 school year. The court dismissed Jordan’s ADA discrimination and hostile work environment claims concluding that she was not an otherwise qualified individual with a disability at the time of her termination and, in light of her excessive absences, she could not meet one of the essential functions of her job: providing instruction to her students on a regular basis.
Discussion
The purpose of this article was to review litigation on claims of disability discrimination for in-service teachers. Claims were brought primarily under the ADA with school districts prevailing in the majority of claims (62%). Failure to accommodate and adverse employment actions were most frequently ruled for teachers (45% and 43% of cases, respectively), whereas disparate treatment (81%) and hostile work environment (75%) were most frequently ruled for school districts. Generally, courts examined two issues: (a) was the adverse action connected to the disability? and (b) was the district’s action sufficiently adverse?
Was There a Connection Between the Adverse Action and the Disability?
In order to bring a discrimination claim, teachers must demonstrate that the school district had engaged in discriminatory actions towards them, and that those discriminatory actions occurred because of their disability. For example, if a teacher was unable to access part of a school building because it was not wheelchair accessible and received subsequent disciplinary action for not attending the meeting, there was a clear connection between the disability and the discriminatory discipline. In contrast, if a teacher had diabetes, and received consistent, poor performance evaluations due to poor classroom management, the teacher would have to prove how diabetes affected their classroom management in order to prove disability discrimination.
Not Otherwise Qualified
In some instances, an employee may have demonstrated a connection between the action and the disability, but the court may have still ruled for the district. Under the ADA, employers are required to provide reasonable accommodations to qualified individuals with disabilities. With those accommodations, the person with a disability must demonstrate they are otherwise qualified to meet the essential functions of the position (Rumel, 2018). If the teacher cannot meet the requirements of the position, the district may take necessary action and dismiss the employee (Rumel, 2018). For example, if a teacher suffering from depression misses 45 days of instruction for disability-related symptoms, the district may still have grounds to dismiss the teacher because attendance is an essential function of teaching, thus the teacher is not otherwise qualified to remain in the position.
Did the Behavior Rise to the Level of Adverse Action?
Another common consideration was whether the action was severe enough to rise to the level of adverse action. To be considered adverse employment action, the action must be significant enough that it changes the terms and conditions of employment (Galaby v. N.Y.C. Board of Education, 2000). Thus, when a plaintiff brings claims of adverse employment action, they are required to prove that the action of the district materially changes the conditions of employment and that the change in employment conditions is related to the disability.
In some instances, the court may have found the action to be an inconvenience, but it did not rise to the level of altering the position. For example, if a teacher’s position were altered and she were required to split her time between two buildings, the action may be unpleasant, but still not reflective of a substantive change in job responsibility. In contrast, if the teacher can prove that the job was changed or altered in a manner that was adverse and related to the disability, then the district may be liable. For example, if a teacher is not permitted to do certain aspects of their job after they disclose their disability, the district may be liable for adverse employment action on the basis of the client’s disability.
Plaintiff Characteristics
Plaintiffs in this study were overwhelmingly female (77%) and the majority were employed as special education teachers. The predominant disabilities reported were mental health disorders. The presence of special education teachers amongst plaintiffs may be logical, given that special education teachers work with students with disabilities on an ongoing basis and may have a greater awareness of disability law. Furthermore, the presence of mental disabilities is consistent with national reports involving adults with disabilities in general. Specifically, an estimated 17.4 million adults with disabilities reported mental distress; the prevalence of mental distress among those with disabilities (32.9%) was 4.6 times that of those without disabilities (7.2%; Cree et al., 2020). In contrast, teachers with physical disabilities were largely absent from the study. These findings may suggest that teachers with physical disabilities are more likely to get accommodations, may be less litigious than teachers with mental health issues, or that teaching presents barriers that causes such teachers to avoid or leave the field of teaching altogether.
Study Limitations
Although this study offers promising findings, results should be interpreted with caution for a number of reasons. Although the sample represents cases that met our inclusion criteria, identified through Lexis+, it is likely that these cases do not represent every case involving employment discrimination for teachers with disabilities, particularly because the majority of cases are settled outside of court. Furthermore, despite the 116 cases that met the inclusion criteria for the study, the majority of cases addressed pretrial motions (e.g., motion to dismiss, motion for summary judgment), and were not yet adjudicated. Despite rigorous search criteria and inclusion coding processes, it is possible that we missed cases that would have been applicable to our study.
Implications for Practice
Although central office human resource personnel and building administrators are tasked with managing a workforce and navigating the implementation of employment law, the National Policy Board for Educational Administration’s (2015) professional standards for educational leaders does not require training programs addressing standards on employment law. Given the significant role building administrators play with interacting, accommodating, and evaluating teachers with disabilities, it is critical that they develop the capacity to promote legally compliant and equitable employment practices.
Building administrators, therefore, should be well versed in schools’ responsibilities under Section 504 and Title II of ADA, particularly with regard to employment practices and accessibility related issues. Working closely with central office personnel in human resources and the 504 coordinators will likely improve general knowledge about disability law regarding accessibility issues and employment practices (e.g., nondiscriminatory practices in hiring, evaluating, and promoting individuals with disabilities; also, responsibilities in ensuring the provision of reasonable accommodations, and avoiding discriminatory/retaliatory practices). It would also aid with timely communication of potential issues with central office administrative personnel.
In addition, targeted professional development typically provided to human resource personnel on employment discrimination and the legal requirements for accommodating employees with disabilities will be also a desirable and applicable to building administrators. These trainings, in particular, should help building administrators distinguish between employees faced with “unpleasant” actions and adverse employment actions that change the terms and conditions of employment. Trainings should also help building administrators discern the connection between their corrective actions and disability discrimination, so the district can promote inclusive practices and avoid potential liability. These proactive measures will not only allow for improved practice in employing and retaining individuals with disabilities by ensuring inclusive and supportive environments, but also minimize potential litigation. Indeed, litigation is inherently adversarial, time consuming, and costly.
Conclusion
Ensuring that the rights of teachers with disabilities are observed is not only required by law, but it may be a potential means to address shortages in the teaching force, a situation that is increasingly becoming more challenging. In addition, shedding additional light in this minimally researched area will result in improved understanding of school-based practice involving teachers with disabilities. Future work should continue to evaluate policy and litigation practices for teachers with disabilities in light of the recently broadened scope of ADA and the result of the 2008 Amendments, collective bargaining agreements, and the ever present threat of discriminatory attitudes and practices, including implicit biases (e.g., discriminatory practices based on minority and disability status across disciplinary practices, including suspensions and expulsions, bullying, seclusion and restraints, and school arrests; also, over representation of minority groups in special education (U.S. Department of Education, Office of Civil Rights, 2019). Furthermore, researchers and district personnel should collaborate to develop and assess training for promoting legal literacy for building administrators in particular (e.g., Decker & Brady, 2015) in order to help them better implement employment law in ways that are compliant and inclusive for teachers with disabilities.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
