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

Retaliation For Whistleblowing: Public Employees Have First Amendment Protections – 42 U.S. Code § 1983 (Municipal Liability)

42 U.S. Code § 1983 (Freedom of Speech – First Amendment) – Municipal Liability

Municipal employees are protected against retaliation for speaking up about government wrongdoing.  To establish a prima facie case of retaliation under 42 U.S.C. § 1983, a plaintiff must show “(1) that they engaged in a protected activity; (2) that the employer took an adverse employment action against them; (3) that a causal connection existed between the protected activity and the asserted adverse action.”  King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir. 2003)

Under the First Amendment, a public employee has a qualified right to speak on matters of public concern.

  1. A public employee has to be speaking as a citizen and not as part of his or her official duties.
  2. A public employee’s speech must be on a matter of public concern.
  3. In order to establish municipal liability, a public employee’s speech must result in an adverse employment action (harassment, denial of promotion, demotion, deprivation of benefits, suspension, termination, etc.).

Public employees have First Amendment protections.  Pickering v. Board of Education, 391 U.S. 563 (1968)

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”  42 U.S.C. § 1983

Bryan A. Chapman, Esquire

www.baclaw.com