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Two federal appellate panels, in back-to-back cases of first impression, have held that disabled people can sue for workplace harassment under the Americans With Disabilities Act (ADA). The two rulings come from two of the most conservative federal circuits — the 4th and 5th — and put an imprimatur on a trend in federal district courts to recognize disability-based claims of hostile work environments. The decisions are “very straightforward applications of Supreme Court doctrine” developed under Title VII of the Civil Rights Act of 1964, says employment law scholar Charles Craver of George Washington University National Law Center. The high court has recognized hostile work environment claims under Title VII, which prohibits discrimination in employment on the basis of race, sex, national origin and religion. “I think a judge would have to be quite bold not to apply the same rule under the ADA,” says Craver. “My biggest surprise is that it took 10 years to answer the question.” THE NEW RULINGS The question arose in two very different cases. In the 5th U.S. Circuit Court of Appeals, Sandra Flowers, who was employed for two years as a medical assistant at Southern Regional Physician Services in Baton Rouge, La., claimed that her working environment changed dramatically for the worse after her supervisor discovered that she was infected with the human immunodeficiency virus, which she had contracted from her husband. Flowers v. Southern Regional Physician Services, No. 99-31354. The supervisor, who up to that point had been a close friend, allegedly ceased socializing with Flowers and began intercepting her phone calls and eavesdropping on her conversations. Her boss lowered her high performance appraisals to the point that she was placed on probation, and forced to undergo four random drug tests in one week. Southern Regional’s president allegedly refused to shake hands with Flowers, called her a “bitch” and discharged her. A jury found that Flowers had been subjected to disability-based harassment that created a hostile work environment. The jury awarded her $350,000. That was subsequently reduced to $100,000 by the trial judge. In the 4th Circuit case, Robert Fox had worked in General Motors’ Martinsburg, W.Va., plant for 12 years when he severely injured his back. After an extended disability leave, he returned to work in October 1994 under medical restrictions that he only do light-duty work. From then until August 1995, he claimed, he was subjected to a barrage of harassment from supervisors and co-workers and ordered to perform jobs that went beyond his medical restrictions. As a result, he reinjured his back. Fox v. General Motors, No. 00-1589. On one occasion, a supervisor told him, “I don’t need any of you handicapped m–f–s. As far as I am concerned, you can go the hell home.” Other plant workers with disabilities also testified that supervisors referred to them as “911 hospital people.” They said that they had witnessed the harassment of Fox, whose doctor had recommended that he take disability leave in August 1995 because of the negative impact the harassment was having on his emotional and physical condition. A jury awarded Fox $200,000 on his hostile environment claim and $7,000 for medical expenses and lost wages. In the appellate courts, both GM and Southern Regional essentially argued that an ADA hostile work environment claim was not actionable because neither the Supreme Court nor the federal appellate courts had expressly upheld such a claim. Both appellate panels, however, looked to the language of the ADA and Title VII to conclude that such claims are actionable. Congress enacted the ADA after the Supreme Court’s ruling that hostile work environment claims can be brought under Title VII, said Judge Diana Gribbon Motz of the 4th Circuit. “We can presume Congress was aware of the Court’s interpretation of ‘terms, conditions, or privileges of employment’ when it chose to use parallel language in the ADA,” she wrote. Because the ADA “echoes and expressly” refers to Title VII and both have the same purpose — to eliminate discrimination in the workplace — courts use the Title VII precedent in ADA cases, she said. “For these reasons, we have little difficulty in concluding that the ADA, like Title VII, creates a cause of action for hostile work environment harassment,” Mott concluded. NECESSARY PROOF To establish a claim, the panels said, a plaintiff must prove that he or she is a qualified individual with a disability; that he or she was subjected to unwanted harassment; that the harassment was based on the disability; that the harassment was sufficiently pervasive or severe as to alter a term, condition or privilege of employment; and some factual basis to impute liability for the harassment to the employer. “I could not honestly and with good conscience make a strong argument that the claim should not be recognized,” says Southern Regional’s counsel Murphy J. Foster III of Baton Rouge’s Breazeale, Sachse & Wilson. “The courts have recognized every other kind of harassment — racial, national origin, sexual, age. It only stood to reason it was just going to take the right case for them to recognize it under the ADA.” His opponent, Richard P. Bullock of Baton Rouge, says, “Basically all of the jurisprudence said the ADA uses the same remedial scheme as Title VII, so it would seem illogical not to extend it.” But Foster notes that employers now will also have available in ADA claims the affirmative defense recognized by the high court in Title VII harassment claims: an effective, anti-harassment policy in place that the victim unreasonably fails to invoke. In the end, the most difficult element in ADA cases will continue to be proof of disability, says Professor Craver. “Under Title VII, we are all protected by definition,” he says. “But that’s not true under the disability act, and courts have taken a parsimonious view of ‘disability.’”

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