Retaliation claims may not be filed under Section 504 of the Rehabilitation Act, the U.S. Court of Appeals for the Sixth Circuit ruled November 21 in Smith v. Michigan Department of Corrections. Section 504 prohibits disability discrimination by entities receiving federal financial assistance.
Although Section 504 incorporates the Americans with Disabilities Act employment discrimination standards, the Smith panel found no express right to bring retaliation claims under Section 504. In contrast, the ADA explicitly allows both discrimination and retaliation claims. A dissenting judge argued that Section 504’s explicit ADA reference should allow such claims.
While the decision does not refer to Section 503 of the Rehabilitation Act, the panel’s reasoning theoretically could extend to retaliation claims under Section 503, which bars employment discrimination by federal contractors on the basis of disability. In the meantime, federal contractors must continue to adopt and publish an equal opportunity statement that explicitly protects applicants and employees from retaliation.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.