Disability Harassment Actionable Under the ADA
In a recent decision, the Fourth Circuit Court of Appeals, which encompasses Maryland, Virginia, West Virginia and the Carolinas has, for the first time, recognized a hostile work environment claim under the Americans with Disabilities Act (“ADA”). In Fox v. General Motors Corporation, 2001 WL 369669 (4th Cir. 2001), the Court not only recognized a claim for harassment under the ADA, but also upheld a jury verdict in favor of the plaintiff in excess of $200,000.
Fox began working for GM in 1968. In 1980, he suffered from a non-work related injury and went on disability leave for eleven years, until September 1991. From August through October 1992 , he went out on disability leave again due to his back condition. A little over a year later, in November 1993, he took disability leave again until October 1994.
When Fox returned to work in October 1994, his doctor restricted him to light duty. He claims that beginning at that time, he was subjected to workplace harassment due to his back condition. Specifically, Fox presented evidence that his supervisors constantly ordered him to perform duties beyond his physical restrictions. They also took pictures of him at work performing tasks he was able to perform within his limitations to demonstrate that they were no different from his restricted activities. The supervisors assigned him to work at a table and chair that was in a hazardous area and too small, exacerbating his condition. He and other disabled employees were repeatedly subjected to comments by supervisors such as “911 hospital people” and “handicapped MFs” and other employees were encouraged to shun the disabled employees. Fox claimed that this alleged harassment caused him anxiety and depression and exacerbated his back condition, forcing him to take disability leave again in August 1995.
The standard for establishing a hostile work environment claim under the ADA requires the plaintiff to show the following: 1) he or she is a qualified individual with a disability; 2) he or she was subjected to unwelcome harassment; 3) the harassment was based on disability; 4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and 5) some factual basis exists to impute liability for the harassment to the employer.
Of special note, was the Court’s finding that Fox was not barred from establishing that he was otherwise qualified to perform the essential functions of the job despite the fact that he applied for total temporary disability workers’ compensation commencing immediately upon his leave in August 1995. Fox successfully argued that there was no overlap of the time periods for which he sought recovery under the ADA and workers’ compensation benefits. He also argued that he could have continued to work during the time period for which he sought workers’ compensation benefits, but he was prevented from doing so because of the harassment to which he was subjected at the plant. The Court accepted this as a legitimate explanation for the apparent contradiction between his representations that he was totally disabled and he was otherwise qualified to perform the essential functions of his job.
In upholding the jury’s finding of harassment, the Court concluded that there was evidence to show that the harassment Fox experienced was “frequent, severe, physically harmful and interfered with his ability to perform his job.” The Court also found that the harassment related to Fox’s disability. Harassing statements such as “handicapped MF” and “hospital people” directly referenced disabilities and requiring Fox to perform tasks beyond his physical capabilities “targeted” his disability.
The Court went on to conclude that the jury’s $200,000 award for compensatory damages was not “grossly excessive or shocking to the conscience,” a finding necessary to set it aside. Even though Fox’s depression had other causes, including his divorce and the death of his daughter, he presented sufficient evidence to establish that the worsening of his back pain, and associated pain and suffering, was caused by the harassment he experienced at work.