Thursday, March 7, 2019

Court of Appeals finds ADA plaintiff makes out a hostile work environment claim

The Second Circuit holds for the first time that the Americans with Disabilities Act makes it illegal for an employer to maintain a hostile work environment on the basis of an employee's disability. The Court then reinstates the claim brought by a disabled worker who was harassed because of his disability.

The case is Fox v. Costco Wholesale Corp., issued on March 6. Plaintiff worked for Costco on Long Island. He has Tourette's Syndrome and Obsessive Compulsive Disorder. As a result of his neurological condition, plaintiff would often touch the floor before moving, and he would cough when he felt a verbal tic coming on to prevent others from hearing him use foul language. But his coworkers mocked him over his disability. Summarizing his testimony, the Court of Appeals (Hall, Droney and Jacobs) writes:

In his deposition, Fox described how certain Costco employees would make “hut‐hut‐hike” remarks to mimic Fox’s verbal and physical tics. Fox also testified that these comments “were audible to the managers of the Holbrook warehouse from their position on the warehouse’s podium,” and “happened in plain view of the Supervisors and the Front End Managers and nothing was ever said.” Fox testified further that these types of comments happened for “months and months” and “whenever” he would experience tics.
Plaintiff eventually complained to Costco's CEO about the stressful work environment which was aggravating his Tourette's. While Costco investigated this complaint, the harassment continued, and he was singled out for minor acts of misconduct that coworkers had gotten away with.

Two issues on the hostile work environment claim: (1) does the ADA recognize such a claim and (2) is there a  hostile work environment.

On the scope of the ADA, the Court says that the ADA's language relating to "terms, conditions and privileges" of employment is identical to the protections under Title VII, which does prohibit a hostile work environment on the basis of race, sex, etc. Since the Supreme Court had already held that Title VII prohibits a hostile work environment when the ADA was enacted in 1990, we can assume that Congress intended the ADA to protect disabled workers from disability-related harassment. Plus, the Fourth, Fifth, Eighth and Tenth Circuits have already interpreted the ADA this way, so the Second Circuit safely joins them, giving plaintiffs a new federal cause of action in this jurisdiction.

As for whether Fox has a hostile work environment claim, some managerial acts do not get him there, including certain discipline for not performing his duties properly, as "legitimate reprimands by an employer are not abuse." But the jury may find that plaintiff suffered ongoing and pervasive harassment from coworkers who ridiculed his disability. While the district court in dismissing this claim said plaintiff had to introduce “evidence regarding the number of times the comments were made per shift, week and/or month” to show that the “hut‐hut‐hike” comments pervaded Fox’s working environment. But that "demand[s] too much of Fox, the Court of Appeals says, because he "is not required to list the shift, week, or month to be able to present this issue to a jury." The Second Circuit has said this before, and it now says it again. A plaintiff in a hostile work environment case will not remember the times and dates or even the specifics of much of the harassment. But testimony like this will survive summary judgment. The Court explains:

Because Fox identified specific comments—his co‐workers mocking his Tourette’s by repeating “hut‐hut‐hike,” presumably while touching the floor—and because he testified that “whenever I said [the F word], they said ‘hut‐hut‐hike’” for “months and months,” Fox has provided evidence sufficient to meet his burden to demonstrate pervasiveness. On Fox’s evidence at this stage, we hold, a reasonable fact finder could conclude that the “hut‐hut‐hike” comments made for months by co‐workers when Fox experienced verbal tics were sufficiently severe and pervasive to change the conditions of Fox’s employment. Since the phrase “hut‐hut‐hike” is borrowed from football, and Fox alleges that he often touched the floor when he suffered from verbal tics, presumably resembling a three‐point stance, we can fairly infer that the phrase “hut‐hut‐hike” was mockery of his disability as opposed to, for example, discussing last night’s game or motivating each other to get going.

In addition, and crucial to our analysis, Fox introduced evidence that his supervisors witnessed this conduct for “months and months” and did nothing, demonstrating a specific basis for imputing the objectionable conduct to Costco. Thus, Fox has met his burden to defeat Costco’s motion for summary judgment on his hostile work environment claim.

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