ADA: Disability Harassment In The Workplace


Employers have an affirmative duty to keep the workplace free of disability related harassment.

Under the Americans with Disabilities Act (ADA), employers have an affirmative duty to keep the workplace free of disability related harassment.  Fox v. General Motors Corporation, 247 F.3d 169 (4th Cir. 2001) (A fact finder could conclude from this evidence that the harassment Fox experienced was frequent, severe, physically harmful, and interfered with his ability to perform his job.  In other words, Fox presented evidence of a workplace environment that a reasonable person could easily find hostile.)

  • If a supervisor engages in disability related harassment that results in a hostile work environment, to escape liability, an employer must demonstrate that: 1) it took reasonable steps to prevent and to quickly stop harassing behavior, and 2) the employee unreasonably failed to take advantage of the employer’s efforts to prevent or stop the harassing conduct or to avoid harm.
  • If a supervisor engages in disability related harassment that results in an adverse employment action (demotion, denial of promotion, suspension, termination, etc.), the employer has no affirmative defense.
  • If a co-worker engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.
  • If a non-employee (e.g. customer) engages in disability related harassment that results in a hostile work environment, an employer is liable if it knew or should have known about the harassment and it failed to take immediate and appropriate corrective action.

In order to prevail on a disability harassment claim, an employee will have to prove that they:

  1. are disabled or regarded as being disabled;
  2. were subjected to unwelcome harassment;
  3. the harassment was because of their disability;
  4. the harassment affected a term, condition or privilege of employment; and
  5. the employer knew, or should have known, of the harassment and failed to take prompt remedial action.

Bryan A. Chapman, Esquire

www.baclaw.com

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Published in: on August 7, 2015 at 11:58 am  Leave a Comment  
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