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6th Circuit finds school employees’ advocacy for students with disabilities a protected activity

October 19, 2020

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By: Lily Crespo Esq.

What happened: On September 6, 2020, the 6th Circuit Court of Appeals in Kentucky found that challenging a school’s deficient administration of a free appropriate public education fell within protected activity of school employees.

Legal context of this case: The Americans with Disabilities Act (ADA) prohibits 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 the 6th Circuit and other courts have held that advocating for members of a protected class is a protected activity.

Background: Two nurses employed at the school (Cherryl Kirilenko-Ison and Susan Bauder-Smith) argued that they “reported in good faith an allegation of child neglect to the Cabinet of the Family and Health Services,” and as a result were victims of retaliation. According to the complaint, in September of 2016, Kirilenko-Ison was the district health coordinator for the board and Bauder-Smith was employed as a nurse at the schools when a situation arose concerning the medical care of an elementary school student who had been diagnosed with Type 1 diabetes. They then sued their former employer, the Board of Education of Danville Independent Schools, and a district court dismissed their claims. On appeal, the court reversed because the plaintiffs were retaliated against for engaging in protected activity.

Employer takeaway: An employer’s response to a complaint can be deemed unlawful retaliation even if an employee’s complaint is later revealed to be unfounded. However, even when employees have clearly engaged in protected activity, they are not insulated from legitimate discipline. Remember to carefully document all disciplinary actions.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

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