DISABILITY AND HOSTILE WORK ENVIRONMENT UNDER THE ADA

In this case, the employee Fox suffered from Tourette’s Syndrome and Obsessive‐ Compulsive Disorder since birth. A complaint was filed against his longtime employer for disability discrimination under the Americans with Disabilities Act and New York State Human Rights Law, asserting claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation. The Second Circuit held that his hostile work environment claim is cognizable under the ADA, and with respect to that claim, they found that there were disputes as to material facts.

Fox v. Costco Wholesale Corp., No. 17-0936 (2d Cir. Mar. 6, 2019):

"We have previously assumed without deciding that hostile work environment claims are cognizable under the ADA. See, e.g., Fleiger v. E. Suffolk BOCES, 693 F. App’x 14, 19 (2d Cir. 2018) (summary order) (assuming the plaintiff could bring a hostile work environment claim under the ADA where such claims failed at summary judgment in any event). Moreover, a number of courts that have considered this question have found such claims to be cognizable under the ADA. See Lanman v. Johnson Cty., 393 F.3d 1151, 1155–56 (10th Cir. 2004); Shaver v. Indep. Stave Co., 350 F.3d 716, 720 (8th Cir. 2003); Flowers v. S. Reg’l Physicians Servs., Inc., 247 F.3d 229, 232–35 (5th Cir. 2001); Fox v. Gen. Motors Corp., 247 F.3d 169, 175–76 (4th Cir. 2001).

We are persuaded by our sister Circuits, which have reasoned that claims for hostile work environment are actionable under the ADA. Under the ADA, a covered employer “shall [not] discriminate against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). “Congress borrowed this language from Title VII, which similarly provides that it ‘shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.’” Lanman, 393 F.3d at 1155 (quoting 42 U.S.C. § 2000e‐2(a)(1)) (emphasis in original). “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.” Shaver, 350 F.3d at 720.

“[I]n construing a statute, we must look at how its text was understood at the time that it was passed.” Id. When the ADA was enacted, the Supreme Court had twice concluded that Title VII provided for hostile work environment claims. See Lanman, 393 F.3d at 1155–56. By borrowing Title VII’s language, Congress suggested that it intended for the ADA to be coextensive, at least in this respect, with Title VII. This view is bolstered by the shared purpose of Title VII and the ADA to prevent discrimination against a defined class of people. See, e.g., id.

“Because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose—the prohibition of illegal discrimination in employment—” it follows that disabled Americans should be able to assert hostile work environment claims under the ADA, as can those protected by Title VII under that statute, Gen. Motors, 247 F.3d at 176, and we here so recognize.

B.

To prevail on a hostile work environment claim, Fox must show “(1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment,’ and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). Although the victim must subjectively perceive the conduct as abusive, the misconduct shown also must be “severe or pervasive enough to create an objectively hostile or abusive work environment.” Id. at 374 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Even an isolated act may be so serious that it requires the conclusion that the terms and conditions of employment were altered. Id. A plaintiff alleging a hostile work environment claim under the ADA, therefore, “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Id. (internal quotation marks omitted). Courts look to the totality of the circumstances to determine whether a plaintiff has met this burden, including proof of “the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with [the plaintiff’s] work performance.” Harris, 510 U.S. at 23.