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Human Resource E-Bulletin - July 2001

ADA Permits Hostile Work Environment Claims Against Employers

A number of lower courts over the past few years have addressed the issue of whether a hostile work environment claim can be brought under the Americans with Disabilities Act (ADA).  The lower courts, using a test developed to bring hostile work environment claims under Title VII, have upheld such claims.[1]  This past spring, two of the most conservative federal appellate courts (the 4th and 5th circuits), in back-to-back cases of first impression, have also held such claims can be brought under the ADA.  Although the cases arose out of vastly different fact situations, both of the original plaintiff's claims were upheld on the same legal reasoning.  The fourth circuit in Fox v. General Motors Corp. (4th Cir. 2001) was the first appellate court to address this issue, followed by the fifth circuit in Flowers v. Southern Regional Physician Services (5th 2001).  Both courts followed similar reasoning, and in Fox the court discusses the ADA statutory mandate that;

"[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) permits such a claim.  Similar language under Title VII has been held by the Supreme Court to permit a hostile work environment claim. 

The court also noted that the regulatory language implementing the employment provisions of the ADA state that "[i]t is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of ... any right granted or protected by" the employment provisions of the ADA. 29 C.F.R. § 1630.12(b)(Equal Employment Opportunity Commission). 

A number of other circuits have presumed that the ADA includes a cause of action for hostile work environment harassment, again modeled after a Title VII cause of action. 

Elements of a Hostile Work Environment Claim

Following are the five elements the court said that an ADA plaintiff must prove to establish a hostile work environment claim

(1)   They are a qualified individual with a disability; 
(2) They were subjected to unwelcome harassment; 
(3)   The harassment was based on his disability; 
(4)   The harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and 
(5)   Some factual basis exists to impute liability for the harassment to the employer.
 

"Reasonable Person Standard"

In addition, to recover on a hostile environment claim, a plaintiff must demonstrate not only that he subjectively perceived his workplace environment as hostile, but also that a reasonable person would so perceive it -- that it was objectively hostile. Factors to consider

  • frequency of the discriminatory conduct; 
  • its severity;
  • whether it is physically threatening or humiliating, or a mere offensive utterance; and 
  • whether it unreasonably interferes with an employee's work performance. 

Facts in Fox Case

After 12 years of working for General Motors as a tool handler, stock attendant, and a truck driver Robert Fox, the plaintiff, sustained a non-work related injury to his back that rendered him unable to work. He remained employed at GM and went on disability leave.  He returned to work, but was forced to go out on disability leave three more times because of aggravations to his back injury. During one of the periods he was able to return to work (for almost one year) the harassment occurred. He was restricted to light duty during this period. 

Fox testified to a constant barrage of verbal harassment and insults directed at him and other workers with disabilities. As a result, other co-workers ostracized employees with disabilities. Several other employees at the GM plant supported Fox's testimony and described the harassment they experienced because of their disabilities. 

Specific instances of harassment included the following:

  • When his immediate supervisor attempted to accommodate his restrictions, some of Fox's co-workers resented these and complained to another supervisor, Tom Dame, and the general foreman, Bill Okal. After this, Dame and Okal tried to prevent Fox from receiving accommodations. 
  • Dame and Okal took pictures of the tasks that Fox performed and asserted that those tasks were no different, in terms of the effect on Fox's back, than the tasks Fox could not perform because of his disability. 
  • Okal then insisted that his immediate supervisor require Fox to perform the tasks that Fox said aggravated his back. 
  • For a short period of time Dame directly supervised Fox, during which time Dame, using loud profane language asked Fox to perform a task that was beyond his physical ability. When Fox responded that he could not perform the requested task, Dame asked "Why the F--- can't you do it?" Fox explained that his abilities were medically limited because of his back. Dame then stated "I don't need any of you handicapped M-----F-----'s. As far as I am concerned you can go the H--- home." 
  • In a meeting called by Fox with supervisors and other company officials, several of the officials and supervisors made fun of workers with disabilities.
  • After that meeting, Fox performed numerous jobs but Okal "kept putting [Fox] in jobs [he] couldn't do."   New medical restrictions were issued for Fox by his neurologist that limited him to working at the light-duty table. Prior to that time, workers with medical restrictions at GM performed light-duty tasks at a large group table, but after Fox received his new restrictions, Okal assigned Fox to a small individual table and chair directly in front of his office in a hazardous area. He reaggravated his back injury because the table and chair were too small for his 6' 7" frame. 
  • As a result of Okal's harassment, Fox applied for a truck driver position, which met his medical restrictions and for which he was otherwise qualified. Okal refused to allow Fox to take the physical examination that was a prerequisite for obtaining the truck driver position. 

Plaintiff Takes Disability Leave

Fox claimed that the harassment he experienced at GM caused him both physical and emotional injury and offered testimony from his psychiatrist and his neurologist that Fox complained of harassment at work to them. Fox was physically able to return to light duty work but the harassment caused depression and anxiety, which led to a worsening of Fox's physical condition. His doctor recommended that he be placed on disability leave. 

Fox went on disability leave as recommended August 1995 and remained on leave until May 1998. Fox eventually received temporary total disability benefits for the period August 15, 1995 through October 11, 1997. His doctor completed Fox's workers' compensation forms, on which he indicated that Fox was totally disabled and could not do any work. 
 

Plaintiff Brings Suit Against GM

In 1997, Fox brought suit against GM alleging that, after his return to work in October 1994, GM discriminated against him and subjected him to a hostile work environment in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (1994). 

The court found that the plaintiff met the five elements needed to prove that he had a legitimate hostile work environment claim.
 

Even Though on Disability Leave Plaintiff Can Sue Employer

The plaintiff Fox:

  • Was a qualified person with a disability.  Applying for disability benefits does not stop a plaintiff from making a subsequent ADA claim an ADA claimant who has made a claim for total disability under a different statute or program must offer an explanation for the apparent contradiction. (EEOC v. Stowe- Pharr Mills, Inc., 216 F.3d 373, 378 (4th Cir. 2000). Fox responded to the apparent inconsistency 

Fox's ADA claim concerns the period from October 1994 to mid-August 1995. He made the workers' compensation claim after he left the plant. 

He could have, and would have, continued to work (with reasonable accommodation) at the GM plant in August 1995 but for the hostile work environment.

In this case, the court concluded that the harassment Fox experienced was frequent, severe, physically harmful, and interfered with his ability to perform his job. 

The abuse was directly attributable to Fox's medical condition. 
 

Damages

Fox was awarded $200,000 in damages. Under the ADA, compensatory damages are available for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." 42 U.S.C. § 1981a(b)(3).

Fox's testimony as to the specific nature of his "emotional pain, suffering, inconvenience, mental anguish, [and] loss of enjoyment of life," 42 U.S.C. § 1981a(b)(3), and the corroboration of his claim by medical professionals, the $200,000 award was upheld.
 

Plaintiff Returns to Work at GM

Fox returned to work at GM in May 1998 and, supervised by different personnel, has continued to work there since that time. 
 

Background in the Flowers Case

Sandra Flowers was employed for two years as a medical technician at Southern Regional Physician Services, in Baton Rouge, Louisiana.  Ms. Flowers claimed that her working environment worsened after her supervisor came to know of her HIV+ status. Flowers claimed that she and her supervisor had had a close and amicable social relationship apart from work, before the disclosure of her HIV status.  Flowers claimed that this social relationship soured, and that at work her supervisor began intercepting her phone calls and eavesdropping on her conversations. This supervisor, soon after, lowered Flowers' high performance evaluations, and this led to Flowers being placed on probation.  Flowers was also subjected to four drug tests in one week. The Southern Regional Physician Services' president allegedly refused to shake hands with Flowers, and called her a "bitch" while discharging her. 

[1] Charmaine M. Olbrot v.Dennys (ND Ill. 1998) Hostile work environment claim based on evidence of both physical and verbal abuse, lack of the opportunity to obtain training, and scheduling problems (asking the employee to work when she had a doctor's appointment, scheduling the employee for work and then asking her not to come in, sending the employee home early) and testimony that the employer rebuffed claims of harassment; Ragusa v. Teachers Ins. & Annuity Ass'n-College Retirement Equities Fund, Inc. (SDNY 1998) Special attention given to plaintiff because they continually made mistakes couldn't prove harassment based on disability "isolated remarks or occasional episodes of harassment will not merit relief under title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive;" see also Silk v. City of Chicago (194 F.3d 788) (7th Cir. 1999). "The court concluded that the alleged incidents of harassment, taken either separately or together, did not "rise to the level of a materially adverse employment action because they [did not alter] a term or condition of employment."  Plaintiff needs to show 'repeated slurs and management's tolerance and condonation of the situation.' With respect to the first factor, the court stated that "the plaintiff must show that the alleged harassment constituted an unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee's ability to perform the tasks required by the employer." With respect to the second factor, the court held that "plaintiff must show that the employer knew or reasonably should have known of the alleged conduct and failed to take prompt and remedial action. An employer who has taken reasonable steps to correct and/or prevent the harassment is not liable."  "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages The defense comprises two necessary elements(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 
 

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Tajauna Dunning, Communications Director
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