JANUARY 9, 2003 - Claims under the American with Disabilities Act (ADA) traditionally have focused on adverse employment decisions such as terminations or challenged working conditions or assignments. Recently, however, ADA plaintiffs have been adding claims for harassment because of their disability.
This trend mirrors the development of sexual discrimination case law; initially cases were focused on adverse job decisions and only later sexual harassment claims became prevalent. Employers can be liable for sexual harassment if co-worker or supervisory mistreatment becomes sufficiently "severe or pervasive" to create an abusive work environment. Recognizing this, most employers have provided employee training and have established policies that forbid sexual harassment.
Employers are less familiar with the risks associated with conduct that can be characterized as harassment of a person with a disability. Nevertheless, based on recent ADA developments, they should consider adopting the same preventative measures they use for avoiding sexual harassment claims.
A recent case filed in Utah reflects this trend toward focusing on harassment in the context of a disability issue. The employee had a substantial attendance problem, allegedly because of his depression and asserted post-traumatic stress condition. The employer repeatedly contacted the employee while he was on leave, demanding that he return to work. The employee eventually filed a charge claiming the employer committed disability-based harassment by aggressively "dunning" him to return to work and questioning whether his disability was real. He also claimed that while he was at work, other employees persecuted him because of his disability, making fun of him for being depressed and not performing his job well.
Whether the plaintiff will prevail on his claim remains to be seen, but the case illustrates why employers need to be attentive to the conduct of supervisors and co-workers toward an employee who may have an actual disability, but who may still be viewed as just a "slacker." Two recent federal court of appeals decisions also make clear that disability harassment is just as actionable as sexual or racial harassment.
Late last year, a federal appeals court ruled for the first time that ADA prohibits disability harassment.
The suit was brought by a plaintiff who claimed that she had been subjected to harassment and later fired, after her supervisor learned that she was HIV positive. The plaintiff presented evidence that, after she revealed that she was HIV-positive, her supervisor began treating her differently; among other things, he stopped socializing with her and attempted to overhear her telephone conversations. She also claimed that she was then required to undergo a number of drug tests and was placed on probation before she was finally discharged.
Based upon that evidence, a jury determined that the plaintiff was subjected to disability harassment.
The appeals court affirmed, explaining that the ADA, just like the sex discrimination laws, is intended to protect employees against harassment because of their protected status.
In a second recent federal appeals court decision, the plaintiff claimed that, after a work-related back injury, his supervisors and co-workers verbally harassed him.
The plaintiff also claimed that his supervisors required him to do jobs beyond his physical capabilities. After a jury verdict in his favor, a federal appeals court decided that the plaintiff had offered "a good deal of evidence" that his supervisors had harassed and ostracized him and other employees with disabilities, even to the point of preventing them from doing their assigned tasks.
All these cases are instructive because they show that employers should ensure that they have a policy that expressly forbids not only sexual harassment, but all forms of harassment and mistreatment. This is particularly important because without such a policy the employer may be unable to make out a crucial legal defense: that the plaintiff did not avail himself of a reporting procedure that could have ended the alleged harassment. Similarly, the cases make clear that employers must recognize the potential for real biases against employees with impairments.