2nd Circuit: Hostile Environment Claim Allowed Under ADA

Author: Robert S. Teachout, XpertHR Legal Editor

April 1, 2019

The 2nd Circuit Court of Appeals has ruled that an employee can assert a hostile work environment claim under the Americans with Disabilities Act (ADA). The court - which covers Connecticut, New York and Vermont - noted that it was persuaded by the reasoning of the 4th, 5th, 8th and 10th Circuit Courts, all of which hold that "hostile work environment claims are cognizable under the ADA."

The plaintiff in Fox v. Costco Wholesale Corporation has had Tourette Syndrome and Obsessive Compulsive Disorder (OCD) since birth. As a result, Fox would often touch the floor before moving (similar to the three-point stance taken by football players), and cough or grunt to prevent others from hearing whenever he felt an uncontrollable verbal tic (usually swearing) coming on.

In his complaint, Fox asserted that his coworkers would mock his conditions by calling out "hut, hut, hike!" whenever he would cough. He said the mockery went on for "months and months," creating a hostile work environment. He also testified that the Costco warehouse managers could hear the comments and they were made "in plain view of the supervisors and front end managers and nothing was ever said."

In its ruling, the court noted that the ADA borrowed its anti-discrimination language from Title VII of the Civil Rights Act of 1964, which the Supreme Court has held provides for hostile work environment claims. "It follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII," the court said.

The ruling also eases the requirements for proving a claim. The court held that a plaintiff need not provide exact numbers and times that comments and conduct occurred in order to show that alleged harassment was "severe and persuasive."

"We note that teasing in the workplace is not uncommon, and in most instances probably not actionable," the court wrote. The issue to determine, instead, is "whether the frequency and severity of the mockery rise to the level of an objectively hostile work environment."