June 2001

The United States Court of Appeals for the Fifth Circuit recently became the first federal appellate court to hold that disability-based harassment in the workplace is actionable under the Americans with Disabilities Act ("ADA"). One week later, the Fourth Circuit joined the Fifth Circuit in recognizing an ADA hostile environment claim similar to the claim typically raised by employees under Title VII of the Civil Rights Act of 1964, as amended ("Title VII").

In Flowers v. Southern Regional Physician Services (5th Cir. 2001), Flowers, a medical assistant at Southern Regional Physician Services, alleged that her working environment became hostile after her supervisor learned she was HIV positive. Specifically, Flowers' supervisor stopped socializing with her, and began intercepting her telephone calls and eavesdropping on her conversations. Flowers also began to receive poor performance evaluations, was placed on probation, and forced to take four random drug tests in one week. Following Flowers' termination, a jury concluded that she was subjected to disability-based harassment and awarded her $350,000 (which was subsequently reduced to $100,000 by the trial judge).

In Fox v. General Motors (4th Cir. 2001), Fox returned to work with restrictions following a back injury. Fox claimed that he was thereafter subjected to harassment from his supervisors and co-workers. Specifically, Fox alleged that on one occasion his supervisor said "I don't need any of you handicapped [expletive]. As far as I am concerned you can go the hell home," and that other plant workers referred to Fox and other disabled workers as "911 hospital people." Fox further claimed that he was ordered to perform jobs which went beyond his medical restrictions. After Fox was forced to take leave due to the harassment, a jury awarded him $200,000 on his hostile environment claim and $7,000 for medical expenses and lost wages.

The employers in both Flowers and Fox argued that an ADA hostile work environment claim was not actionable because neither the United States Supreme Court nor the federal appellate courts had expressly recognized such a claim. Both Courts disagreed. In doing so, the Courts opined that because the ADA "echoes" and expressly refers to Title VII, and because both have the same purpose-to eradicate discrimination in the workplace-Title VII precedent can be lawfully applied to ADA cases. Therefore, both Courts had little difficulty concluding that the ADA, like Title VII, supports a cause of action for hostile work environment harassment. To that end, the Courts pointed out that Congress enacted the ADA soon after the United States Supreme Court sanctioned hostile work environment claims under Title VII.