Adding insult to injury: disability-based hostile environment under the ADA.

Publication: Employee Relations Law Journal

Publication Date: 22-SEP-04

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COPYRIGHT 2004 Aspen Publishers, Inc.

It has long been recognized that a gender-based hostile work environment is actionable under Title VII. More recently the issue of disability-based hostile work environment has been examined by the federal judicial system. First, courts have questioned whether or not there is a cause of action under the ADA for claims of disability-based hostile work environment. At first the prevailing approach had been to assume without deciding that such a cause exists. Finally though, three circuits have explicitly ruled that the ADA does prohibit disability-based harassment resulting in hostile environment. This article examines the rationale that has been used in reaching this conclusion, namely that ADA language concerning terms and conditions of employment is essentially identical to such language in Title VII, which has been used in determining that Title VII prohibits gender-based and race-based hostile environment. Next, the issue of what conditions might create a hostile work environment has been examined. Two major attempts at showing hostile work environment have been to 1) show that the disabled individual suffered adverse work-related decisions (such as criticism of work performance) bused on his/her disability or 2) that the disabled individual was the subject of jokes, insults or other degrading behavior on the part of supervisors or other employees. This article describes representative decisions at both the district and appellate levels regarding the above attempts.

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Until recently no US Circuit Court of Appeals had explicitly decided whether a cause of action for hostile environment discrimination existed under the Americans With Disabilities Act (ADA). This was because, on the occasions when the question arose, the circuits were able to find in favor of the defendant employer for other reasons. Thus they were able to sidestep the issue. However, in 2001 both the Fourth and Fifth Circuits made such a ruling. In addition, at the end of 2003, the Eighth Circuit, also, expressly recognized hostile environment under the ADA. This article flint describes the rationale expressed by the courts and then examines some illustrative cases depicting either the presence or absence of hostile environment based on disability.

INITIAL OPINIONS

The first (by a matter of weeks) definitive conclusion regarding the issue of actionability was reached by the Fifth Circuit in Flowers v. S.Reg'l.Physician Service. (1) Using the same reasoning as prior circuits which had "assumed without deciding" a cause of action existed, the count stated that the language in the ADA concerning "terms, conditions and privileges of employment" was essentially identical to the language in Title VII:

We conclude that the language of Tide VII and the ADA dictates a consistent reading of the two statutes. Therefore, following the Supreme Court's interpretation of the language contained in Title VII, we interpret the phrase "terms, conditions, and privileges of employment," as it is used in the ADA, to "strike at" harassment in the workplace. (2)

The court went on to say that, "we find that a cause of action for disability-based harassment is viable under the ADA." (3)

Almost simultaneously, the Fourth Circuit reached the same conclusion in Fox v. GMC. (4) Once again the similarity, between the ADA and Title VII in the "terms, conditions and privileges of employment" language was noted. However, the Fourth extended its reasoning to justify the recognition of disability-based hostile environment. It noted that Congress had enacted the ADA after the U S Supreme Court had interpreted "terms, conditions and privileges of employment" in Title VII to prohibit race-based hostile environment. It then reasoned that Congress was aware of dais ruling and had intended the same interpretation of the language in the ADA:

Here, this presumption appears particularly valid. For in the ADA itself Congress evidenced its knowledge of, and reliance on. the parallel nature of the two statutes, providing that "the powers, remedies, and procedures set forth in [Title VII] shall be the powers, remedies, and procedures [the ADA] provides." (5)

Finally, the court noted the implied acceptance of a cause of action by other circuits, the explicit recognition of several district courts, and the fact that no court had ruled negatively regarding the issue.

In much the same fashion, the Eighth Circuit decided the issue in Shaver v. Indep. Stave Co. (6) It concluded that Congress intended that the ADA prohibit disability-based hostile environment in the workplace:

Thus, when Congress included the phrase "terms, conditions, and privileges of employment" in the ADA, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment (emphasis added). (7)

WHAT CONDITIONS LEAD TO HOSTILE ENVIRONMENT?

At this point, the principle of disability-based hostile environment seems to be well established. The question then becomes to what level must harassment rise to create "hostile environment?" Courts are in agreement with two principles:

1. The harassment must be sufficiently severe or pervasive to alter the...

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