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Second Circuit Upholds ADA Hostile Work Environment Theory

The Second Circuit Court of Appeals has joined its “sister Circuits and hold[s] that hostile work environment claims are cognizable under the ADA.”
Christopher Fox worked at Costco Wholesale Corporation beginning in 1996. Fox has been diagnosed with Tourette’s Syndrome and Obsessive-Compulsive Disorder. Things changed for him in 2013 when a new General Manager and Assistant Manager were hired at his store; he was reprimanded four times in the next two years. Fox alleged that the manager disparaged him because of disability on several occasions stating, “I cringe every time I walk by you” and “you finally did it.” Fox further alleged that his co-workers regularly taunted him for his disabilities, mimicking his verbal and physical tics. According to Fox, this behavior happened in earshot of Costco managers. Fox complained to Costco’s CEO and an investigation was conducted. Fox was then transferred to another position. Fox claims that the harassment continued after the investigation was concluded.
The federal district court dismissed Fox’ claims in their entirety but the Second Circuit reversed as to the harassment claim under the Americans with Disabilities Act. The appellate court stated:

“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 the statute.

With that ruling, the court found Fox asserted that specific comments made by his co-workers making fun of his Tourette’s and alleged comments were made for “months and months.” If true, these facts were sufficient evidence to suggest the conduct was “pervasive.” It was noted by the court that generally teasing in the workplace is not actionable, however, “Fox has raised an issue of fact as to whether the frequency and severity of the mockery rise to the level of an objectively hostile work environment."