Jury may hear claim that Costco managers ignored disability harassment
- In reviving a Costco employee's lawsuit, the 2nd U.S. Circuit Court of Appeals has ruled for the first time that a hostile work environment claim can be made under the Americans with Disabilities Act (ADA) (Fox v. Costco Wholesale Corp., No. 17-0936-cv (2nd Cir. March 6, 2019)).
- The court was considering an appeal from Christopher Fox, an individual with Tourette’s syndrome and obsessive-compulsive disorder. He had sued Costco, alleging that he was mocked by co-workers and that managers knew about the harassment and sometimes participated. A lower court dismissed his claims but, on appeal, the 2nd Circuit said Fox had produced enough evidence to send the case to a jury to determine "whether the frequency and severity of the mockery rose to the level of an objectively hostile work environment."
- In reaching its conclusion, the 2nd Circuit for the first time joined several other circuits in holding that the ADA contemplates hostile work environment claims. The court said that "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."
The U.S. Equal Employment Opportunity Commission says harassment is unwelcome conduct that is based on a number of characteristics, including disability, and that behavior can become unlawful when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider hostile or abusive. Petty slights, annoyances and isolated incidents generally will not rise to that level, according to agency guidance.
In this instance, the court noted that legitimate reprimands did not support Fox's hostile work environment claims. "Legitimate reprimands by an employer are not abuse," the 2nd Circuit said, nor were the disciplinary actions taken against the plaintiff in response to Costco members complaints. The alleged mocking, however, may ultimately meet that standard.
Notably, a plaintiff is not required to prove a "hellish" workplace to establish a hostile work environment, the 7th Circuit ruled last month in a case involving allegations that a supervisor used a racial slur against an employee. The court said a supervisor’s use of racially toxic language in the workplace (three slurs over a six-month period during a four-year employment) is much more serious than a co-workers.
The 7th Circuit also upheld a ruling for a former Costco employee who brought a hostile work environment claim, finding that harassment need not be "overtly sexual" to create a hostile work environment under Title VII. In that case, a male customer allegedly stalked, videotaped, touched and subjected the woman to various personal questions and comments. And the 4th Circuit recently found that a false rumor that a female employee slept with her male boss to obtain a promotion could rise to that level as well.
For employers that want to be proactive in preventing and addressing hostile workplace claims, HR can put into place a variety of strategies. Experts generally suggest that HR implement anti-harassment training for both employees and managers, adopt robust reporting mechanisms and obtain visible buy-in from senior leadership to correct culture failings.
- United States Court of Appeals for the Second Circuit Fox v. Costco Wholesale Corp.