2nd Circuit Recognizes ADA Hostile Work Environment Claim

By Jonathan E. O’Connell, SHRM-SCP June 18, 2019
2nd Circuit Recognizes ADA Hostile Work Environment Claim

​An employee with Tourette's syndrome and obsessive-compulsive disorder could proceed to trial with a claim of hostile work environment under the Americans with Disabilities Act (ADA), the 2nd U.S. Circuit Court of Appeals decided.

The plaintiff began his employment with Costco Wholesale Corp. in 1996 in its Holbrook, N.Y., warehouse. During his tenure, his positions included serving as a member of the floor crew, an assistant cashier, a cashier and a greeter. In June 2013, the Holbrook warehouse came under new management.  

Due to his conditions, the plaintiff would frequently touch the floor before moving and would cough to avoid swearing, which was a verbal tic. According to the plaintiff, following his transfer from greeter to assistant cashier, some co-workers would mock his condition by saying "hut-hut-hike" to mimic his verbal and physical tics. He further alleged that management overheard and was aware of these remarks, although management denied ever hearing such comments.

In late March 2014, the plaintiff sent an e-mail to Costco's CEO in which he explained that he had Tourette's syndrome and obsessive-compulsive disorder, and the change in management style at the Holbrook warehouse caused him stress and aggravated his condition.

After the plaintiff sent the e-mail, Costco initiated an investigation into his complaints, which resulted in the reassignment of a supervisor. But the plaintiff alleged that his co-workers continued to mistreat him because of his condition. He claimed that he received a reprimand for leaving his workstation to get a drink of water, as well as for waving customers to his checkout line after he was instructed by co-workers "not to scream." Additionally, certain cashiers complained about the speed at which the plaintiff performed his work.

In November 2014, the plaintiff suffered a panic attack at work. An ambulance was called, and he was escorted from the warehouse by emergency medical technicians. The plaintiff then took indefinite medical leave.

After filing an equal employment opportunity complaint with the New York State Division of Human Rights, in January 2015 the plaintiff sued Costco in the U.S. District Court for the Eastern District of New York alleging disparate treatment, retaliation, failure to accommodate and hostile work environment under the ADA. Costco filed a motion for summary judgment seeking to dismiss the plaintiff's claims before trial.

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The district court dismissed his case in its entirety. The plaintiff appealed the dismissal to the 2nd Circuit.

The 2nd Circuit agreed that the plaintiff's discrimination, retaliation and failure-to accommodate claims were appropriately dismissed. The court, however, reached a different conclusion with respect to the plaintiff's hostile work environment claim.

The court began its analysis by recognizing, for the first time, that a hostile work environment claim under the ADA could be brought in the 2nd Circuit. In doing so, it joined several other appeals courts that have already reached this conclusion in other cases, including the 4th, 5th, 8th and 10th Circuits.

The court explained that to establish a hostile work environment under the ADA, a plaintiff must demonstrate a work environment that was both subjectively and objectively abusive as a result of severe and/or pervasive discriminatory conduct. With respect to the alleged "hut-hut-hike" comments, the court reasoned that the plaintiff's testimony that these remarks were made for months created a question as to whether Costco employees engaged in ongoing and pervasive discriminatory conduct.

The court stated that "[s]ince the phrase 'hut-hut-hike' is borrowed from football, and [the plaintiff] alleges that he often touched the floor when he suffered from verbal tics, presumably resembling a three-point stance, we can fairly infer that the phrase 'hut-hut-hike' was mockery of his disability."

The court concluded that a jury should decide whether the frequency and severity of the alleged mockery rose to the level of an objectively hostile work environment.

Fox v. Costco Wholesale Corp., 2d Cir., No. 17-cv-0936 (March 6, 2019).

Professional Pointer: It is not unusual for courts to defer to juries to determine whether a plaintiff was subjected to a hostile work environment, particularly when there is conflicting testimony between the parties regarding the nature and extent of certain harassing remarks. Human resource professionals should instill in management the importance of addressing inappropriate comments in the workplace.

Jonathan E. O'Connell, SHRM-SCP, is the owner of O'Connell Law PLLC, a labor and employment law firm that focuses on providing advice and counsel to management clients in Northern Virginia and Washington, D.C. 



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