Disabled Employees and Harassing Coworkers: Significant New Decision

Well, it took a while but the federal circuit appeals court in NY just joined it “sister circuits” and held that “hostile work environment claims are cognizable under the ADA.”

What does this mean?

Title VII provides that it “shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.”

Included within Title VII is a prohibition against a hostile work environment, whose elements are

(1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment,’ and (2) that a specific basis exists for imputing the objectionable conduct to the employer. This we know as the frequently seen sexual or racial harassment claims, which, we also know, must be either severe or pervasive.

These claims under Title VII are well-established – but surprisingly not so for disabled employees under the Americans With Disabilities Act (“ADA”), at least in the federal courts in NY, Connecticut and Vermont (the “Second Circuit.”).

At least until now.

In this latest decision, the appeals court had before it many claims from an employee who suffered from birth with Tourette’s Syndrome (“Tourette’s”) and Obsessive‐Compulsive Disorder (“OCD”). We need not go into all of the claims which he asserted – the court tossed them. Except it upheld the hostile work environment claim which he asserted under the ADA.

The appeals court ruled that the hostile work environment claim is “cognizable under the ADA” and that there existed disputes as to material facts sufficient to defeat summary judgment for the employer. The court acknowledged that

[t]his Circuit has previously assumed, without deciding, that hostile work environment claims are cognizable under the ADA. … [and that] [w]e are persuaded by our sister Circuits, which have reasoned that claims for hostile work environment are actionable under the ADA.

The court looked to Title VII and stated that “[w]hen the ADA was enacted, the Supreme Court had twice concluded that Title VII provided for hostile work environment claims,” and that therefore “[b]y borrowing Title VII’s language, Congress suggested that it intended for the ADA to be coextensive, at least in this respect, with Title VII. This view is bolstered by the shared purpose of Title VII and the ADA to prevent discrimination against a defined class of people.”

Quoting a decision from a “sister circuit,” the court concluded that

Because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose—the prohibition of illegal discrimination in employment—it follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII under that statute.

This decision is significant because – at least in the Second Circuit – the law was not settled as to hostile work environment and the ADA.

And I posted just last week about a new lawsuit filed by the EEOC in which it was alleged that a disabled employee was cruelly ridiculed: when “her supervisor learned about her disability-related symptoms, she was mocked on a weekly basis by her co-workers and supervisor because of those symptoms.”  In the Second Circuit she presumably would not have had a good claim.

I noted that the EEOC trial attorney in that case said that “An employer cannot condone a work environment where an employee with an impairment is ridiculed because of it. It must step in to stop such behavior.”

Well, this may have been in doubt in the Second Circuit, but not anymore.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]