In a case of first impression, the Second Circuit has held that hostile work environment claims are cognizable under the American with Disabilities Act (ADA). In Fox v. Costco Wholesale Corporation, No.17‐0936‐CV (2d Cir. Mar. 6, 2019), the Second Circuit joined the Fourth, Fifth, Eighth, and Tenth Circuits to recognize this cause of action under the ADA. The court also provided useful guidance on when teasing may or may not suffice to establish a hostile work environment.
The plaintiff, Christopher Fox, worked for Costco in New York for 21 years, and he suffered from Tourette’s Syndrome and Obsessive-Compulsive Disorder (OCD). As part of Fox’s neurological condition, he would often touch the floor before moving and cough prior to a verbal tic in order to prevent others from hearing him swear. After a change in management in 2013, Fox’s work environment deteriorated. He alleged that his coworkers would say “hut-hut-hike” to mimic his verbal and physical tics. He also alleged that the “hut-hut-hike” comments were audible to managers who were in plain view but did nothing, and this went on “for months and months.” During Fox’s employment, he was reprimanded for infractions of company policy, such as leaving his post and leaving a shopping cart unattended, and he was disciplined after two female customers complained about some comments he allegedly made.
Fox sued under the ADA and the New York State Human Rights Law, alleging hostile work environment, disparate treatment, failure to accommodate, and retaliation. The District Court granted summary judgment to Costco on all claims. The Second Circuit affirmed the District Court’s grant of judgment except as to the hostile work environment claim.
First, addressing whether hostile work environment claims are cognizable under the ADA, the Second Circuit held that they are. The court explained that, because the ADA prohibits discrimination in the “terms, conditions, and privileges of employment” just as Title VII does, it should be read coextensively with Title VII. The Second Circuit further noted that “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.”
Next, the Second Circuit looked to the undisputed facts in Fox’s case and held that the District Court “demanded too much” when it dismissed Fox’s hostile work environment claim for failing to provide evidence of how often and when allegedly harassing comments were made. Fox’s testimony that his co-workers mocked his disability by repeating “hut-hut-hike” for months and that managers witnessed the conduct and did nothing about it was sufficient.
On the other hand, Costco’s legitimate reprimands and disciplinary actions for Fox’s own infractions did not support his hostile work environment claim. The Second Circuit reasoned that “[l]egitimate reprimands are not abuse,” and the “disciplinary actions taken against Fox in response to complaints of Costco members [therefore did not] support” his claim.
The Second Circuit concluded by helpfully emphasizing that not all teasing will suffice to show a hostile work environment, or support a damages claim:
In closing this analysis, we note that teasing in the workplace is not uncommon, and in most instances probably not actionable. Stuttering is mimicked; the overweight are called names; acne, baldness, and height are mentioned for a laugh. All of this can be hurtful. But mockery of overt features does not necessarily support damages….
In these respects, Fox may be helpful to employers in defending future hostile work environment claims in the Second Circuit.