Second Circuit Rules Disabled Employees May File "Hostile Work Environment" Claims Under the ADA

You are probably familiar with the concept of a hostile work environment in relation to sexual harassment law. The basic idea is that if an employee experiences “severe and pervasive” abuse in the workplace over a long period of time due to their sex, that can make it effectively impossible to perform their job and thus constitutes a form of illegal employment discrimination.

Costco Worker with Tourette's Alleges Pervasive Coworker Mockery

Traditionally, hostile work environment claims involve employees who have certain characteristics–e.g., sex, race, religion, et al.–protected under Title VII of the federal Civil Rights Act or their New York State and New York City equivalents. But a federal appeals court here in New York recently considered the possibility of a hostile work environment claim under the Americans with Disabilities Act, a separate federal statute that specifically forbids disability discrimination.

This particular case, Fox v. Costco Wholesale Corporation, involves a plaintiff who previously worked as a cashier and greeter at a Costco store on Long Island. The plaintiff suffers from Tourette's syndrome and obsessive-compulsive disorder (OCD). During his tenure at Costco, the plaintiff alleged several of his co-workers mocked his verbal and physical tics, which were symptoms of his Tourette's.

For example, the plaintiff said that he typically would “touch the floor before moving and would cough when he would feel a verbal tic come on in order to prevent others from hearing him swear.” In response, the plaintiff alleged his co-workers “would make 'hut-hut-hike' remarks,” which “were audible to the managers.” The plaintiff said the managers never addressed this mockery of his disability.

The plaintiff took indefinite medical leave after suffering a panic attack at work in 2014. He later sued Costco, alleging numerous violations of the ADA and the New York State Human Rights Law. A federal district court granted summary judgment to Costco, dismissing all of the plaintiff's allegations.

The plaintiff appealed. The U.S. Second Circuit Court of Appeals affirmed most of the district court's ruling but reinstated the plaintiff's “hostile work environment” claim. The Second Circuit noted that in previous cases it had “assumed without deciding that hostile work environment claims are cognizable under the ADA.” Noting that several other federal appeals courts have expressly recognized such claims, the Second Circuit now did likewise.

As for this case, the Second Circuit noted that the record developed so far “supports a finding that [the plaintiff] believed the work environment at the Holbrook Costco to be abusive.” Moreover, there was a “material issue of fact as to whether Costco employees engaged in ongoing and pervasive discriminatory conduct.” The Court cautioned, however, that “teasing in the workplace is not uncommon, and in most instances probably not actionable.” It would be left to the trial court to sort out whether the “teasing” in this case rose to the level of a hostile work environment.

Speak with a New York City Disability Discrimination Lawyer Today

The Second Circuit's decision is welcome news for any New Yorker who faces bullying and abuse at work due to a disability. If you have evidence that you are the victim of a hostile work environment, it is important to speak with an experienced New York City employment attorney as soon as possible. Contact the Nisar Law Group, P.C., if you need assistance right away.

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