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May 2019
20
May 20, 2019

Bullying Based on a Disability is an Invitation to a Lawsuit

Comments like “he’s got a screw loose” or “she’s three bricks short of a full load” are not uncommon. But this type of commentary, if severe and pervasive, may give rise to a hostile work environment claim under the Americans with Disabilities Act (ADA). 

For example, the Second Circuit recently revived a Costco employee’s suit in which he alleged that he was bullied for having Tourette Syndrome. Fox v. Costco Wholesale Corporation, 918 F. 3d 65 (2nd Cir. 2019). Tourette’s is a nervous system disorder charac-terized by repetitive, involuntary movements or sounds known as tics. 

In Fox, the employee asserted a hostile work environment claim under the ADA, claiming that his coworkers mocked him when he experienced tics caused by his Tourette syndrome. Specifically, the employee alleged that his coworkers ridiculed him for grunting in an attempt to avoid using profanity involuntarily when he experienced a verbal tic. His coworkers would yell “hut-hut-hike,” a phrase made by football quarterbacks, when the tic occurred. These comments were heard by managers and persisted for months. Although the lower court granted summary judgment in favor of Costco on all claims, the Second Circuit reversed the judgment. Joining the Fourth, Fifth, Eighth and Tenth Circuits, the Second Circuit explicitly held that hostile work environment claims could be made under the ADA. The Court further reasoned that the district court demanded too much from the employee when it found that he had to present evidence showing the number of times the comments were made per shift. The Second Circuit concluded that the employee’s deposition testimony that the comments occurred every time he grunted and persisted for “months and months” was sufficient to show that they were pervasive enough to support a hostile work environment claim. 

Moreover, an employee can sustain a hostile work environment claim under the ADA for harassment on the basis of a perceived mental illness. In 2014, a federal district court in Florida found that a former county sheriff office employee alleged harassment of a sufficiently severe nature to support a claim for a hostile work environment under the ADA. Flamberg v. Israel, No. 13-62698-CIV, 2014 WL 1600313 (S.D. Fla. Apr. 21, 2014).

In Flamberg, the employee took leave under the Family & Medical Leave Act (FMLA) to seek treatment for lymphoma. After he returned to work, the employee alleged that he suffered harassment by his supervisors and colleagues because they regarded him as having a mental disability that could manifest in violent tendencies. The employee alleged that, in one instance, a colleague joked that if the employee went nuts, he would shoot another coworker. Moreover, the employee alleged that his coworkers fabricated statements made by the employee with regard to workplace violence that ultimately 
led to his termination.

In a motion for summary judgment, his employer argued that the harassment alleged was limited to isolated incidents of pranks, jokes and mere inconveniences that did not rise to the level of severe and pervasive misconduct. However, the Court found that the hostility allegedly faced by the employee went far beyond what a reasonable individual would consider to be a mere joke. The Court held that the alleged harassment was sufficiently severe to support a hostile work environment claim under the ADA. 

Bullying based on any type of disability—whether the disability is actual or perceived, or is associated with physical or behavioral symptoms—should not be tolerated. Taking prompt corrective action to curb outdated comments like “his lights are on but no one’s home” not only prevents the situation from escalating into a hostile work environment claim, but also fosters a more inclusive work environment. If you receive a discrimination or hostile work environment complaint, or are interested in Diversity and Inclusion training for your organization, please contact a member of Warner’s Labor and Employment Practice Group to assist you.

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