Second Circuit Court of Appeals Recognizes Hostile Work Environment Claim Under the ADA

Q.  An employee at one of my company’s facilities in New York recently complained to his supervisor that his coworkers made fun of his disability. Can an employee with a disability file a “hostile work environment” claim under the Americans With Disabilities Act?

A.  On March 6, 2019, the Second Circuit Court of Appeals ruled for the first time that hostile work environment claims are available to plaintiffs under the Americans with Disabilities Act (ADA). With its decision in Fox v. Costco Wholesale Corporation, the Second Circuit joins the Fourth, Fifth, Eighth and Tenth Circuits, which likewise have found that hostile work environment claims are cognizable under the ADA.

In Fox v. Costco, the plaintiff suffered from Tourette’s syndrome and obsessive-compulsive disorder, conditions which manifested in verbal tics and other behavioral issues.  He alleged that, following a change in management, he was subjected to a hostile work environment by a new manager, who reprimanded the plaintiff for his work on certain tasks that non-disabled individuals performed in the same way but were not reprimanded for.  Later, the employer disciplined the plaintiff following complaints from customers regarding his behavior, which included an incident where he told a customer that she was “the love of his life.”  After investigating these incidents, the employer suspended the plaintiff for several days and transferred him to another job with the same pay and benefits.

Even after the transfer, however, the plaintiff alleged that his new supervisor made harassing comments to him. In addition, his coworkers began mimicking his behavioral tics, allegedly taunting him with comments such as “hut-hut-hike,” a mocking reference to a behavioral tic in which plaintiff sometimes crouched like a football player to touch the floor before moving forward.  The plaintiff alleged that the employer’s managers witnessed these comments over a period of “months and months,” but failed to act.  After plaintiff had a panic attack at work one day, he went out on indefinite medical leave and did not return to work.

The district court granted summary judgment to the employer on the plaintiff’s claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation under the ADA and New York State Human Rights Law. Regarding the hostile work environment claim, the district court found that the plaintiff failed to prove that the alleged conduct was sufficiently “severe and pervasive” because he offered no details regarding the persistence of the “hut-hut-hike” comments, such as how many times the comments were made per shift, week and/or month.  The district court also ruled that the conduct and comments at issue were not objectively hostile and abusive.

On appeal, the Second Circuit affirmed the district court’s grant of summary judgment with respect to the plaintiff’s claims for disparate treatment, retaliation, and failure to accommodate. However, the Second Circuit also found that the plaintiff offered enough evidence to present the claim to a jury to decide “whether the frequency and severity of the mockery rose to the level of an objectively hostile work environment.”  Specifically, the plaintiff’s testimony that his coworkers mocked his disability for months—in the presence of managers who did nothing to prevent the comments—was sufficient to defeat summary judgment.

The court based its decision on the plain language of the ADA, which prohibits employers from discriminating “against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” As the court explained, this language was borrowed from Title VII, and since the ADA “echoes and expressly refers to Title VII” and Title VII allows for a hostile work environment claim, the same standard should be applied to a hostile work environment claim under the ADA.

Having found that the ADA can serve as a basis for a hostile work environment claim, the court proceeded to analyze whether the plaintiff presented evidence that the alleged harassment was sufficiently severe or pervasive to meet the standard. The appeals court rejected the district court’s finding that the plaintiff was required to present specific evidence “regarding the number of times the comments were made per shift, week and/or month” in order to show that the harassment was pervasive.  In this respect, the Second Circuit explained, “[t]he district court demanded too much of [plaintiff].”  Instead, the plaintiff was required to demonstrate only that the conduct he complained about was “objectively abusive.”

In light of this decision, now may be a good time to emphasize to managers and supervisors that they must take action if they become aware of employees making inappropriate remarks in the workplace based on an individual’s protected status, including disability.

Rogers Stevens

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