Employment: Hostile Work Environment

Case Law:

Two Federal Court of Appeals decisions confirmed that a "hostile work environment" cause of action does exist under the American with Disabilities Act (ADA). Both the 4th and 5th Circuits acknowledged the right for a plaintiff to sue an employer for discrimination on the basis of his disability for creating or allowing a hostile work environment.

• Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229 (5th Cir. 2001).
• Fox v. General Motors, 247 F.3d 169 (4th Cir. 2001).

Both Circuits focused on similar language used in the Civil Rights Act of 1964 (Title VII) to establish a "hostile work environment" cause of action under the ADA.

The ADA provides that "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard... terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).

Title VII provides that it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]" 42 U.S.C. § 2000e-2(a)(1).

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), courts have routinely used Title VII precedent in ADA cases. Since "harassment in the course of employment is actionable under Title VII's prohibition against discrimination in the terms, conditions, or privileges of employment" Patterson v. McLean Credit Union, 491 U.S. 164, 180 (1989), both Flowers and Fox reasoned that a consistent reading of the ADA establishes a similar prohibition against discrimination with respect to a disability.

Therefore, Flowers and Fox applied a five-factor test modeled under a similar claim under Title VII. In order to prevail under a "hostile work environment" claim under the ADA, the plaintiff must show that

1. he is a qualified individual with a disability;
2. he was subjected to unwelcome harassment;
3. the harassment was based on his disability;
4. the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and
5. some factual basis exists to impute liability for the harassment to the employer - (that the employer knew or should have known of the harassment and failed to take prompt, remedial action).

Even though the rulings bind only the 4th and 5th circuit, existing decisions from the sister courts of appeals indicate a willingness to recognise a disability-based harassment claim under the ADA. See Silk v. City of Chicago, 194 F.3d 788, 803 (7th Cir. 1999) (proceeding on the assumption that a hostile environment claim is cognizable under the ADA); Walton v. Mental Health Ass'n, 168 F.3d 661, 666 (3d Cir. 1999) ("This framework indicates that a cause of action for harassment exists under the ADA."); Wallin v. Minn. Dep't. of Corr., 153 F.3d 681, 688 (8th Cir. 1998) (assuming without deciding that cause of action exists).

Shaver v. Independent Stave Co., 350 F.3d 716 (8th Cir. 2003).

• Hostile work environment claims are actionable under the ADA (for the 8th Circuit).
• Harassment must be both subjectively hostile or abusive to the victim and "severe and pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive."
• Anti-discrimination laws do not create a general civility code. Conduct that is merely rude, abrasive, unkind, or insensitive does not come within the scope of the law.
• Harassment that by itself is not actionable cannot rise to the level of illegality by being the result of an unauthorized disclosure. Harassment resulting from a unauthorized disclosure of medical facts would be relevant to the measure of damages on a claim for such disclosure.

Lanman v. Johnson County, Kan., 393 F.3d 1151 (10th Cir. 2004).

• A hostile work environment claim may be brought under the ADA.

Lenzen v. Workers' Compensation Reinsurance Association, 705 F.3d 816 (8th Cir. 2013).

• To establish an ADA hostile work environment claim, an employee must show that hostile work environment was due to her disability.
• While supervisor spoke harshly to employee, evidence showed that she indiscriminately berated all of her subordinates.

Sellers v. Deere & Co., 791 F.3d 938 (8th Cir. 2015).

• For a hostile work environment claim, must consider the totality of the circumstances, including the frequency and severity of the conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the job.
• Employee alleged two incidents in which his supervisor yelled at him, berated him, and otherwise engaged in extreme and offensive behavior. More than a few isolated incidents are required to support a hostile work environment claim. 

Patton v. Jacobs Eng'g Group, Inc., 863 F.3d 419 (5th Cir. 2017).

• Hostile work environment failed because employee unreasonably failed to take advantage of corrective opportunities provided by the employer. Employee was required to contact HR and left a a general voicemail with them. He did not follow up after HR never contact him back. 

Demkovich v. St. Andrew the Apostle Parish, 973 F.3d 718 (7th Cir. 2021).

• Ministerial exception applied to hostile work environment claims.