The Second Circuit recently held that the Americans with Disabilities Act (“ADA”) encompasses claims for hostile work environment harassment (“HWE”). Fox v. Costco Wholesale Corporation. While this plaintiff-friendly ruling may be disappointing to employers, the decision also contains some helpful analysis for defense of those claims.
In Fox, Plaintiff brought ADA claims alleging discrimination, failure to accommodate, and hostile work environment. Dismissing the discrimination claim, the Court held, among other things, that the four verbal reprimands received by Plaintiff did not rise to the level of adverse employment actions because none “resulted in disciplinary action or a reduction in salary, benefits or other responsibilities.” As to the failure to accommodate claim, the Court refused to impute knowledge of the need for an accommodation to the employer because Plaintiff never asked for an accommodation. Moreover, there was no proof that the employer should have offered an accommodation due to its unquestionable need. (It should be noted that state or local laws may be more employee-protective and could support a failure to accommodate claim merely because the employer was on notice of the medical condition).
With respect to HWE, the Court joined four other Circuit Courts in ruling that HWE claims can be asserted under the ADA, but noted that “[l]egitimate reprimands by an employer are not abuse.” Moreover, the Court noted that “teasing in the workplace is not uncommon, and in most instances probably not actionable.” Thus, the mere fact that Plaintiff was teased about his condition was not necessarily actionable harassment. But, since it might be, a trial was ordered as to the HWE claim.
Employers in the Second Circuit must be aware of the possibility of HWE claims under the ADA. As such, employers should update supervisor training to account for ADA hostile work environment claims.