No individual liability in ADA retaliation claims

Can you sue an individual under the Americans with Disabilities Act? The Second Circuit says you cannot, borrowing its analysis from cases interpreting Title VII.

The case is Spiegel v. Schulmann, decided on May 6. Plaintiff was fired from his job at a karate school, allegedly because he was obese. When he told management he was going to file a charge of discrimination, defendants fired Spiegel's friend, Schatzberg, and sued both of them in state court for interfering with the karate school's contracts. Plaintiffs then sued Schulmann for retaliation under the ADA.

At first glance, the ADA allows plaintiffs to sue the individual for retaliation. The ADA's retaliation provision reads:

[n]o 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.

See that? It says "no person" shall retaliate. But the statutory text is not the last word. The ADA also says that "the powers, remedies, and procedures set forth" under Title VII apply to the ADA. However, although ADA claims are generally resolved under Title VII principles, the plain text of Title VII's retaliation provision does not carry the same language as the ADA's retaliation provision. Title VII reads:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis supplied).

While Title VII says an employer cannot retaliate, the ADA says "no person" shall retaliate. Although the statutes contain different language about who cannot retaliate, the Second Circuit says the Title VII analysis still applies. The Court of Appeals has long held that Title VII does not authorize individual liability (Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)). And so while the Court of Appeals notes that its holding in this case "is arguably contrary to a literal reading of" the ADA's retaliation provision, applying Tomka to ADA claims, the Court of Appeals (Hall and Livingston) knocks out the individual retaliation against Schulmann.