Starting today, plan to revise your anti-harassment policies and instruct your staff that harassment based on a worker's disability is against the law. Reason: In a pair of landmark rulings, two federal appeals courts have said that employees with disabilities can sue under the Americans with Disabilities Act (ADA) for harassment.
With similar rulings from two district courts, expect other circuits to fall in line soon. Here's how the two cases played out:
Case 1: HIV-positive worker becomes pariah. Sandra Flowers was friendly with her immediate supervisor, Margaret Hallmark. They'd go out for lunch, drinks and movies. But that all changed when it was discovered that Flowers is HIV-positive.
Hallmark not only refused to go to lunch but also began intercepting Flowers' phone calls and eavesdropping on her conversations. The company's regional president also suddenly became distant, refusing even to shake Flowers' hand. And Flowers was suddenly subjected to frequent drug tests and disciplinary actions, even though she had earned high performance ratings for years. Eventually, she was fired.
Flowers sued, claiming that she suffered from a hostile work environment because of her disability. A jury agreed and granted her $350,000. An appeals court upheld the disability-harassment argument but shaved her award to nominal damages. (Flowers v. Southern Regional Physician Services Inc., No. 99-31354, 5th Cir., 2001)
Case 2: GM worker is mocked for his injuries. Robert Fox, a longtime GM worker, suffered a series of back injuries, and his doctor restricted him to light duty. But Fox's supervisors still forced him to perform jobs beyond his physical abilities. Co-workers resented his light-duty accommodation and complained to the supervisors.
Both supervisors and co-workers swore at Fox and made fun of his disabilities. A supervisor instructed employees not to talk to co-workers with disabilities. The company also barred disabled workers from putting in overtime.
When Fox sued, a jury awarded him more than $200,000 for his hostile work environment. The appeals court agreed. (Fox v. General Motors Corp., No. 00-1589, 4th Cir., 2001)
To determine if GM was liable, the court used the five standards for a hostile environment under Title VII. Specifically, it looked at whether:
- The employee was a qualified person with a disability.
- He was subjected to unwelcome harassment.
- The harassment was based on his disability.
- The harassment was sufficiently severe and pervasive to alter a term, condition or privilege of employment.
- There was some indication that the employer was liable for the harassment.