When people think of illegal workplace harassment they usually think in terms of sexual harassment. Newly proposed government guidelines that have not yet been passed, include harassment based on a person’s disability, race, color, national origin, age, religion, and genetic information in addition to sex harassment.
The new proposed guidelines define disability-based harassment as harassment based on the person’s physical or mental disability, and they offer more articulate definitions and examples than as contained in the current law. This includes harassment about an individual’s particular disability or harassment based on stereotypes about individuals with disabilities in general. It includes examples of harassments based on traits or characteristics linked to an individual’s disability. Note: these proposed guidelines are proposals only to current Federal harassment law. These proposed guidelines have not yet become law, and there will be more evaluations of them to determine what parts of them will become law. Note: the New Jersey Law Against Discrimination prohibits harassment and discrimination against NJ employees with disabilities. If also requires employers to make reasonable accommodations for a NJ employees disability. It also prohibits discrimination based on a "perceived disability."
Harassment Based on Traits or Characteristics Linked to an Individual’s Disability
In the new proposed guidelines, some examples of these traits or characteristics are how an individual speaks, looks, or moves. Cases that were given as examples are in a case brought against Jacobs Eng’g Grp., Inc., 874 F.3d 437 (5th Cir. 2017). In this matter, the court concluded that a reasonable jury could find that the employee was subjected to severe or pervasive disability-based harassment where he had presented evidence that coworkers repeatedly mocked his stutter and his supervisor mocked him in a department-wide meeting. The Court Opinion stated that the employee had alleged that his coworkers at work harassed him on account of his stutter. For example, coworkers would call him names such as lawnmower and bush hog. Additionally, coworkers who passed him in the hallway or met him on the elevator would mock his stuttering, and coworkers who sat near him would mock him and make loud noises right behind him. Even his supervisor allegedly mocked him at a department-wide meeting in front of fifty coworkers. The employee testified that he complained about this harassment to his supervisors. In addition, he testified that he called and left a message with the human resources department, but that this call was never returned. The Court Opinion stated that, “Viewing the record in the light most favorable to [Plaintiff/employee], a jury could find that the harassment he experienced at Jacobs was sufficiently severe or pervasive to alter the terms and conditions of his employment. There is evidence that the alleged harassment was pervasive; for example, the [employee] testified that ‘there were a lot of names by quite a few people over an extended period of time’”.
Another example was a 5th Circuit case, against E.I. Du Pont de Nemours & Co., 480 F.3d 724, (5th Cir. 2007). In E.I. Du Pont de Nemours & Co., the Court affirmed the jury verdict that had found intentional discrimination where, among other things, a supervisor “stated that he no longer wanted to see [the employee’s] ‘crippled crooked self, going down the hall hugging the walls.’”
Disability-based harassment under proposed guidelines also include:
A Request For, or Receipt Of, a Reasonable Accommodation
Harassment related to accommodation requests can include disparaging comments, segregating workers with disability accommodations from other employees, and more closely supervising their work. In a case brought against Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001), the Court upheld a jury verdict on a disability harassment claim based in part on evidence that a supervisor made disparaging comments about employees with disabilities assigned light duty, referred to them as “911 hospital people,” and segregated them from other employees, and more closely supervised their work.
The Court Opinion stated that the employee who had requested the accommodation testified to constant verbal harassment and insults directed at him and other disabled workers, and that it was brought up all the time. For example, at safety meetings, held each week, a [supervisor] referred to the disabled workers as "handicapped people" and "hospital people." [Supervisors] also frequently called this employee and other disabled employees "handicapped MFs" and "911 hospital people." The employee also testified that the supervisor instructed the other employees not to talk to the disabled employees. Perhaps because of this, his co-workers ostracized the disabled employees and refused to bring needed materials to the light-duty table where they worked. He also testified that his supervisor refused to permit disabled employees to work overtime.
The proposed guidelines cite as another example of harassment based on an accommodation request, where the Plaintiff brought suit against the Secretary of the Department of Housing and Urban Development ("HUD")), for failing to provide him with reasonable accommodations and accessible technology, and for harassing him because of his disability, 71 (D.D.C. 2005). Here the court held that a jury could find that unreasonably lengthy delays in responding to the plaintiff’s accommodation requests, combined with other harassing acts, were sufficient to establish a hostile work environment.
When an Individual Is Regarded as Having an Impairment, Even If the Individual Does Not Have an ADA Actual or Record of Disability
This section applies providing that an individual has a disability if the individual is “regarded as having . . . an impairment”. The individual meets this requirement if the individual has been “subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity”; 29 C.F.R. § 1630.2(g)(1)(iii). They noted that the ADA’s protections apply where an individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both “transitory and minor.” The court, in the case cited to, concluded with respect to a disability harassment claim that the evidence supported the jury’s finding that the plaintiff was discriminated against because he was either actually disabled or perceived as such by his employer.
When an Individual Has a Record of a Disability, Even When the Individual Currently Does Not Have a Disability.
If the individual has a past record of a disability but no longer has a disability, harassment as a result of the record is prohibited. 42 U.S.C. § 12102(1)(A)-(B) includes within the definition of disability, a record of a physical or mental impairment.
Associational Discrimination
Associational discrimination is expressly prohibited under the ADA. 42 U.S.C. § 12112(b)(4) states that discrimination against a qualified individual with a disability includes “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association”; 29 C.F.R. § 1630.8. Here the proposed guidelines cited to a case against Fred A. Cook, Inc., 939 F.3d 465 (2d Cir. 2019). In this case, the plaintiff alleged that he was qualified to perform his job but was discriminated against based on his employer’s perception that he was unavailable or distracted due to his daughter’s medical condition. The Court ruled that the plaintiff stated a claim of associational discrimination and that the dismissal of the complaint for failure to state an actionable claim was erroneous because the circumstance s alleged in the complaint pleaded a claim for associational discrimination under the ADA.
Note: The New Jersey Law Against Discrimination also prohibits associational discrimination based on disability. Under the NJ sate discrimination statute, the New Jersey Law Against Discrimination, it also prohibits associational discrimination based on race.
If you quit your job, you may lose right to prevail in a lawsuit
If you quit your job, you may lose right to prevail in a lawsuit. If you are thinking of quitting, or you think you will be fired, you should know that you may lose your right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office today to discuss your options in the safest way for you.
I am an aggressive and compassionate discrimination law attorney who is experienced in successfully representing persons with disabilities who were subjected to unequal pay, harassment, discrimination and retaliation in the workplace and/or were fired, and am successful in recovering money to compensate them.
If you are being subjected to such unlawful workplace discrimination or believe you are being pushed out of your job or were terminated because of a disability, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.