Disability-based harassment may be illegal
Published 04/24/01

Employers and workers alike should understand that it is highly likely that disability based harassment is illegal under the Americans with Disabilities Act ("ADA"). For several years it has been understood that even if management does not take an adverse employment action against a worker because of their race, gender or other protected classes under Title VII of the Civil Rights Act, the employer may still be held liable for a hostile work environment. Such a hostile work environment may be caused by racial jokes, sexually explicit conversation, physical or verbal abuse or other harassment, which is sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.

While several federal district court judges in interpreting the ADA have found that disability based harassment against a worker creates a viable cause of action against the employer, for the first time a U.S. Court of Appeals has agreed. The U.S. Court of Appeals for the Fifth Circuit in ruling on an appeal from the Louisiana Federal Court on March 31, 2001, held that disability based harassment will be treated by the courts like other hostile work environment for race, gender, religion and other protected classes under Title VII of the Civil Rights Act. It is the First Circuit Court of Appeals in Boston and not the Fifth Circuit that handles appeals from the New Hampshire Federal Court, therefore the decision is not binding upon the First Circuit. However, the decision makes it more likely that a New Hampshire employer would be held liable under the ADA for a disability based hostile work environment.

The case was Sandra Flowers vs. Southern Regional Physician Services, Inc. In that case Flowers had been employed by Southern Regional as a medical assistant. Upon her termination, she filed an ADA claim stating that she was terminated because of her disability and also that she was subjected to harassing conduct designed to force her from her position or cast her in false light for purposes of terminating her because of her HIV status.

The Louisiana Federal Court jury found partially in favor of Southern Regional determining that she was not terminated because of her disability, but also found she had been subjected to disability based harassment and awarded her damages for that harassment. Ultimately, the Fifth Circuit Court of Appeals agreed that a disability based harassment claim under the ADA was viable and, therefore could go to the jury, and that the jury had sufficient evidence to find Southern Regional liable for such disability harassment.

However the Court also found that Flowers, in concentrating her damages based upon her wrongful discharge claim, had failed to provide sufficient evidence for damages as to her disability based harassment claim. Therefore, Flowers had a hollow victory in that while she won on liability, the Court remanded that decision to the Federal District Court for an order of nominal damages. The Appellate Court noted in refusing to overturn the liability decision of the jury that credibility determinations, the weighing of evidence and the drawing of legitimate inferences from the facts remain a jury function. Judges are not allowed to overturn jury verdicts merely because they would have ruled differently.

Permitting workers to mimic a disabled worker’s handicap such as a speech impediment or allowing jokes about them is not only highly insensitive by management, but it could possibly cause the employer a legal exposure for a hostile work environment under the ADA even if management itself has taken no directly adverse action against the disabled worker. When in doubt, it would be prudent for the employer to contact its legal counsel for advice as to the complexities regarding such matters. 

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.