2nd Circuit Finds Hostile Work Environment Claims Can Be Brought under the ADA

On March 6, 2019, the U.S. Court of Appeals for the Second Circuit joined its sister Circuits and held for the first time that hostile work environment claims are cognizable under the Americans with Disabilities Act (ADA), opening the door for employees in New York, Connecticut and Vermont to make such claims.

In the case of Fox v. Costco Wholesale Corporation (Docket Number 17-cv-0936), plaintiff Fox suffered from Tourette’s syndrome and obsessive-compulsive disorder since birth. His employment discrimination claims stem from the stress he allegedly suffered while working at Costco. Fox claimed that he was reprimanded and suspended for relatively small infractions and was told that management received complaints from customers about comments that he made to them. Following his suspension, he was moved to a position where he would have less interaction with customers.

Fox alleged that his co-workers treated him poorly and mocked him because of his disabilities. Fox sued Costco based on disability discrimination under the ADA and the New York State Human Rights Law. He also asserted claims of hostile work environment, disparate treatment, failure to accommodate, and retaliation. The United States District Court for the Eastern District of New York granted summary judgment to Costco on all of Fox’s claims.

On appeal, the Second Circuit determined that there was adequate evidence in the record for Fox’s hostile work environment claim to move forward. The Second Circuit subsequently vacated the summary judgment and remanded the case for further proceedings. However, summary judgment as to Fox’s claims for disparate treatment, failure to accommodate and retaliation were affirmed on appeal.

The Second Circuit held that Fox’s hostile work environment claim was cognizable under the ADA. The Court explained that while they had previously assumed that hostile work environment claims were cognizable under the ADA, they had not affirmatively decided the issue until now. In reaching its holding, the Second Circuit relied on the words “terms, conditions, and privileges of employment,” that are expressly contained in both the ADA and Title VII.

The Court reasoned that when interpreting a statute, a court must look at how the text of the statute was understood at the time that it was passed. When the ADA was enacted, the Supreme Court had twice concluded that Title VII provided for hostile work environment claims, and by borrowing the language from Title VII, Congress suggested that it intended for the ADA to be coextensive with Title VII, at least regarding claims for hostile work environment.

The Second Circuit also stated that this view is bolstered by the shared purpose of Title VII and the ADA to prevent discrimination against a defined class of people. As the ADA and Title VII have the same purpose (the prohibition of illegal discrimination in employment), the Court held that it logically follows that disabled Americans should be able to assert a hostile work environment claim under the ADA just as those afforded protection under Title VII can do.

The Second Circuit’s decision in Fox opens the door for plaintiffs in New York, Connecticut and Vermont to include a claim for hostile work environment alongside a disability discrimination claim under the ADA.

It is imperative for all employers, small and large, to have anti-discrimination, harassment and retaliation policies in place as well as a complaint procedure for all employees to follow if they believe they are the victim of harassment or discrimination of any kind. Employers must also conduct a thorough and timely investigation of all complaints of harassment and discrimination in the workplace.