Claim For Hostile Work Environment Viable Under ADA, Eighth Circuit Rules
May 18, 2004
Naomi F. Katz- Chicago
Addressing the issue for the first time, the United States Court of Appeals for the Eighth Circuit ruled that the Americans with Disabilities Act protects workers against disability-based harassment causing a hostile environment. The court ruled, however, that a factory worker who was routinely called “platehead” did not show that his work environment was sufficiently severe to recover. Shaver v. Independent Stave Co. d/b/a Salem Wood Prods. Inc., No. 03-1878, (8th Cir. December 1, 2003).
Employee Subjected to Disability Harassment
John Christopher Shaver worked for Salem Wood Products. As a result of epilepsy Shaver suffered as a teenager, he underwent surgery in which part of his brain was removed and replaced with a metal plate. Shaver claimed that his co-workers repeatedly referred to him as “platehead” because of the surgery.
After Shaver got into a dispute with his supervisor, he was fired for alleged insubordination. Shaver then sought employment with several personal acquaintances and told them to contact the supervisor for a reference. When contacted, the supervisor replied that he could not recommend Shaver because he had “a get rich quick scheme involving suing companies.” None of Shaver’s acquaintances offered him a job, but he later found work when he provided the name of a different Salem supervisor as a reference.
Shaver sued Salem, alleging that he was unlawfully harassed as a result of his epilepsy and the related surgery in violation of the ADA, and that he was retaliated against for claiming harassment. The district court dismissed Shaver’s harassment claims, finding that, although the treatment of Shaver “may have been insulting, mean-spirited, and unprofessional, ... as a matter of law, [it] was not so severe and extreme that a reasonable person would find that the terms and conditions of his employment had been altered.” The court also dismissed the retaliation claim, ruling that Shaver had “manufactured” his retaliation claim by referring his acquaintances to a supervisor who he knew would likely provide a negative recommendation.
Disability Harassment Is Actionable
Addressing the question for the first time, the Eighth Circuit ruled that disability-based harassment can violate the ADA. First, the Court concluded that Shaver was disabled within the meaning of the ADA. It reasoned that Shaver’s pre-surgery epileptic seizures showed a record of an impairment, and that the fact that co-workers called him “platehead” and said he was “stupid” and lacked a “full deck” showed they regarded him as disabled.
Second, the court found that the ADA prohibits discriminatory harassment: “We have suggested in dicta that it might be possible to bring a claim for a hostile work environment under the ADA ... but we have never ruled directly on the matter. Today, ... we join the other circuits that have decided the issue by holding that such claims are in fact actionable.” Nonetheless, the Court ruled that in light of established precedent in sex-, gender- and race-based hostile environment cases, the verbal harassment to which Shaver was subjected did not rise to the level of an objectively hostile environment.
Issues of Fact on Retaliation
The court then reversed the district court’s dismissal of the retaliation claim, finding that Shaver was entitled to a jury trial. First, it stated that “[c]ontrary to Salem’s arguments, negative job references can constitute adverse, retaliatory action as a matter of law.” Second, the court found that the district court’s conclusion that Shaver had manufactured his claim was improper. “The district court seems to have added an additional requirement, namely, that the party asserting the claim did not purposefully seek the adverse action,” the court noted. “Nothing in the words of the statute or in our cases, however, suggests that the conduct of the aggrieved party, other than the party’s initial protected activity, is relevant.” Put another way, the court stated that the ADA does not contain a prohibition against “manufacturing” retaliation claims. “Rather, the law focuses exclusively on the conduct of the alleged retaliator in determining whether the aggrieved plaintiff has a claim.”
Significance
The Shaver case demonstrates that discriminatory harassment for which employers can be liable extends beyond sexual harassment and includes disability harassment as well. At least the Fourth and Fifth Circuits have expressly ruled that disability harassment violates the ADA, and it appears likely that all other courts would follow suit. See Flowers v. Southern Reg’l Physician Servs., Inc., 247 F.3d 229, 232-35 (5th Cir. 2001), Fox v. General Motors Corp., 247 F.3d 169, 175-77 (4th Cir. 2001). As a result, employers must ensure that their policies prohibit all discriminatory harassment, including disability harassment, and that supervisors and employees are trained regarding the employer’s prohibition against disability harassment.
The case also reminds employers, once again, that negative references can result in valid retaliation claims. As a result, employers should adopt a policy that all reference requests are handled by human resources and that the information released is standardized and sharply limited (e.g., name, position and dates of employment).
For more information, email Naomi Katz via at
naomi.katz@hklaw.com or call toll free, 1-888-688-8500.