Second Circuit Says ADA Allows for Hostile Workplace Claims

By Douglas Lipsky

In March, the U.S. Court of Appeals for the Second Circuit ruled that hostile work environment claims are viable under the Americans with Disabilities Act (ADA). The Second Circuit, which had yet to actually rule on the issue, is now in accord with similar rulings by the Fourth, Fifth, Eighth, and Tenth Circuits. While a hostile environment is typically associated with sexual harassment, offensive comments about an employee’s or co-worker’s disability is a form of non-sexual harassment. If you believe your rights under the ADA have been violated, you should consult an experienced disability discrimination attorney.

The Backdrop

An employee of Costco Wholesale Corp filed a lawsuit against the company claiming he was bullied at work for having Tourette’s syndrome, and that his mistreatment was a violation of the ADA and the New York State Human Rights Law. According to the complaint, the worker would cover his mouth and grunt when he experienced a verbal tic that is a side effect of the syndrome, however, he was repeatedly ridiculed by co­workers when the tic occurred.

The trial court dismissed the worker’s claims saying that it was necessary to present evidence detailing the number of times coworkers made comments mocking his disability to support a hostile work environment claim. The Second Circuit disagreed, finding the district court’s  evidentiary demands excessive. The three judge panel also found the worker provided sufficient evidence that (1) the alleged comments were pervasive and (2) managers were aware of the comments, providing a basis for the harassment claims against the company.

While the high court affirmed the dismissal of harassment and retaliation claims brought by the worker and also found claims the company failed to accommodate the worker’s disability unconvincing, the plaintiff’s hostile work environment claim will now have a fair hearing..

What is Non-Sexual Harassment?

Non-sexual harassment involves physical or verbal conduct that is based on race, color, religion, national origin, age (40 and over), disability or other legally protected characteristics; conduct that is severe or pervasive enough to create a hostile work environment is unlawful.

A hostile work environment occurs when unwelcome comments or conduct based on legally protected characteristics interferes with the victim’s ability to perform his or her job, or creates a work environment that a reasonable person believes is hostile, intimidating or offensive (the “reasonable person test”).

Examples of offensive conduct include:

  • Inappropriate jokes
  • Insults
  • Epithets
  • Ridicule
  • Mockery
  • Intimidation
  • Threats
  • Assaults

In the context of hostile environment claims under the ADA, this may involve the use of gestures, displays, and demonstrations or making offensive comments about an employee’s disability. The comments or conduct can be committed by supervisors, coworkers, or third parties (e.g. customers, vendors). In the case involving the Costco worker, co-workers allegedly taunted him with chants of “hut hut hut” (a sound football quarterbacks make before the ball is snapped) when he tried to suppress the side effects of Tourette’s syndrome by grunting.

Generally, to have a valid nonsexual harassment claim, it is necessary to demonstrate that the employee was a member of a legally protected class and that he or she was subjected to unwelcome comments or conduct because of that status. It is also necessary to show that the comments or conduct interfered with the employee’s performance or created a hostile work environment.

The Takeaway

Ultimately, there are a number of factors involved in determining whether a workplace is hostile or abusive, including the frequency of the conduct, the severity of the conduct, and the degree to which the conduct was humiliating or threatening. Whether the Costco worker will prevail in his hostile environment claim remains to be seen. Meanwhile, if you have been subjected to a hostile work environment because of a disability or any other legally protected characteristic, you may be entitled to compensation. The best decision you can make to protect your rights is to consult an experienced employment law attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.