April 22, 2008 - Disability Harassment/Retaliation/Discipline 

Slide 1
Welcome to the 2008 
Legal Issues Webinar Series
The content and materials of this training are property of the DBTAC: Great Lakes ADA Center and cannot be distributed without permission.  This training is develop under NIDRR grant #H133A060097. For permission to use training content or obtain copies of materials used as part of this program please contact us by email at cdiaz3@uic.edu or toll free (800)949-4232 (V/TTY).

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Harassment, Retaliation and Discipline:
Three Emerging ADA Issues
Presented by: 
Barry C. Taylor, 
Legal Advocacy Director &
Alan Goldstein, Senior Attorney 
Equip for Equality 

Equip for Equality is providing this information under a subcontract with the DBTAC: Great Lakes ADA Center, University of Illinois at Chicago, U.S. Department of Education, National Institute on Disability Rehabilitation and Research Award No. H133A060097. 

Slide 3
Topics To Be Discussed 
Disability Harassment
•	Disability Harassment Claims Under Title I of the ADA 
•	Legal Standard for Harassment
•	The First Two Major Cases Recognizing a Claim for Disability Harassment 
•	Cases Allowing Disability Harassment Cases to Proceed
•	Cases Dismissing Disability Harassment Claims 
•	Potential Claim For Disability Harassment Under Title V of the ADA 
•	Tips for Employees and Employers

Slide 4
Topics To Be Discussed 
Retaliation
•	Who can bring suit?
•	What Constitutes an Adverse Employment Action? 
•	Was There a Non-Retaliatory Cause for the Adverse Action?
•	Was the Employee Engaged in a Protected Activity?
•	Causal Connection Between the Employee’s Exercise of Protected Activity and the Employer’s Adverse Action? 
•	Are Retaliation Claims Limited to Current Employers? 
•	Are Damages Available in ADA Retaliation Cases? 

Slide 5
Topics To Be Discussed 
Discipline
•	Knowledge of Disability Prior to Instituting Discipline 
•	Workplace Conduct Rules 
•	Consistent Enforcement of Discipline 
•	Rescinding Discipline as a Policy Modification 

Slide 6
DISABILITY HARASSMENT
Terms, Conditions, 
and Privileges of Employment

Slide 7
Disability Harassment Claims Under Title I of the ADA 
•	ADA Language:  No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”  See 42 U.S.C.§12112 (a)  
•	Analogy from Title VII: Supreme Court has recognized harassment under Title VII relying on “terms, conditions, and privileges of employment” language that is also found in the ADA. 

Slide 8
The Legal Standard for 
Disability Harassment 
 5 Factors in Disability Harassment Claims:
•	Plaintiff is a qualified individual with a disability 
•	Plaintiff was subjected to unwelcome harassment 
•	The harassment was based on plaintiff’s disability
•	The harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment, and
•	Some factual basis exists to impute liability for the harassment to the employer (i.e. the employer knew or should have known of the harassment and failed to take prompt, remedial action) 

Slide 9
DISABILITY HARASSMENT
Court Decisions

Slide 10
First Two Major Cases Recognizing a Claim for Disability Harassment 
•	 In 2001, two circuit courts of appeals recognized a cause  of action of disability harassment:

•	Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001) 
•	Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229 (5th Cir. 2001) 
 
•	 These two cases, which ended up providing very different results to the plaintiffs, formed the basis for the development of ADA disability harassment case law.

Slide 11
Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001) 
Facts:
•	Fox sustained back injury and had light-duty work restrictions.  
•	Foreman and other employees verbally abused Fox. 
•	Foreman instructed employees not to speak to Fox, ostracize him, and not bring him supplies.
•	Foreman made Fox work at a table that was too low, which re-aggravated Fox’s back injury.  
•	Foreman refused to allow Fox to apply for a truck driver position, which met Fox’s medical restrictions and for which he was otherwise qualified. 

Slide 12
Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001) (cont’d)
Damages:

•	Harassment caused Fox both physical and emotional injuries. 
•	Fox filed ADA lawsuit alleging that GM subjected him to a hostile work environment. 
•	The jury awarded Fox $200,000 in compensatory damages, $3,000 for medical expenses, and $4,000 for lost overtime.  The Fourth Circuit affirmed the jury’s verdict.

Slide 13
Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001) (cont’d)
Analysis:

•	4th Circuit recognized disability harassment as a cause of action under the ADA
•	Adopted Title VII’s 5 factor test
•	Relied on EEOC regulations reference to harassment
•	Found harassment was severe and pervasive
•	Testimony of experts about physical and emotional injuries critical to plaintiff’s success

Slide 14
Flowers v. Southern Regional Physician Services, 247 F.3d 229 (5th Cir. 2001) 
Facts:

•	Flowers worked as a medical assistant
•	Supervisor stopped socializing with Flowers and refused to shake her hand after her HIV status was revealed  
•	Work evaluations changed dramatically 
•	Flowers required to submit to multiple drug tests
•	Derogatory language from company president
•	Ultimately Flowers was discharged

Slide 15
Flowers v. Southern Regional Physician Services, 247 F.3d 229 (5th Cir. 2001) 
Analysis:
•	5th Circuit recognized disability harassment as a cause of action under the ADA
•	Adopted Title VII’s 5 factor test
•	Found harassment was severe and pervasive, but physical impact of harassment only arose after termination
•	Must prove “actual injury” resulting from the harassment – can’t presume emotional harm from discrimination
•	Appellate court vacated jury’s award of damages

Slide 16
Examples of Cases Allowing Disability 
Harassment Cases to Proceed
•	 EEOC v. BobRich Enterprises: $165,000 to a hard of hearing employee finding that she had been harassed and forced to resign because of her disability 
•	 Arrieta-Colon v. Wal-Mart Stores: $230,000 jury verdict for employee harassed about penile implant
•	 EEOC v. Luby’s, Inc.: employee with mental impairment stated harassment claim after being subjected to repeated name-calling, barking, and threats of violence
•	 Quiles-Quiles v. Henderson: court rejected argument that harassment is acceptable in “blue collar” workplaces.

Slide 17
Examples of Cases Dismissing Disability Harassment Claims 
•	 Shaver v. Independent Stave Co.: despite being subjected to constant name calling (“platehead”), no harassment claim for person who had brain surgery
•	 Meszes v. Potter: derogatory comments about 	employee with AIDS did not meet harassment standard
•	 Rozier-Thompson v. Burlington Coat Factory Warehouse: comments were not “physically threatening” nor “deeply repugnant” enough to be 	harassment
•	 Mason v. Wyeth, Inc.: actions against employee with hearing impairment were simply pranks not harassment.

Slide 18
Potential Claim For Disability Harassment Under Title V of the ADA
•	 Title V: “unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by this chapter.” 
•	 Standard of Proof: Title V would require a lower standard of proof that the current “severe or pervasive” standard
•	 Proof of Disability: Title V would not require proof of disability
•	 Case Law: Limited case law under this provision of Title V

Slide 19
Tips for Employees With Disabilities 
•	 Address harasser’s conduct and complain to supervisor
•	 Keep good documentation of harassment
•	 Be aware of statute of limitations
•	 Provide proof of any physical injury arising from harassment that was incurred during employment

Slide 20
Tips For Employers 
•	 Modify any anti-discrimination or anti-harassment training to include disability training
•	 Put in place disability harassment policies and appropriate grievance procedures to report workplace harassment 
•	 Train supervisors to respond promptly to an 	employee’s internal complaint of harassment 

Slide 21
RETALIATION
Engaging in Protected Activities

Slide 22
Overview of Retaliation under the ADA
•	 Title V: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.” 
•	 Rationale: provides protection for employees who exercise their civil rights

Slide 23
Who Can Bring Retaliation Claims? 
Not limited to people with disabilities: the majority of courts have found that proving disability is not required in retaliation cases because the retaliation section of the ADA refers to “person” instead of “qualified individual with a disability.” 
Shellenberger v. Summit Bancorp, Inc. -employee with allergies claimed she was terminated because she filed an ADA charge with the EEOC.  Court: language of Title V does not require proof of ADA disability to bring retaliation case. 

Slide 24
What Constitutes an Adverse Employment Action? 
•	 Termination Required? Courts were split whether termination was required to bring retaliation case.
•	 Supreme Court Establishes Standard: In Burlington Northern & Santa Fe Railway Co., Supreme Court resolved lower court split by finding that any action that materially injures or harms an employee who has complained of discrimination and would dissuade a reasonable worker from making a charge of discrimination could be the basis for a retaliation claim. 

Slide 25
What Constitutes an Adverse Employment Action? (cont’d)
•	 Norden v. Samper – employee required to waive right to file EEO complaints in order to return to work.  Court: adverse action supported retaliation claim.
•	 Gilmore v. Potter – after filing EEO complaint, employee was isolated in small room, threatened with termination, called “worthless”, and told not to talk to her coworkers. Court: not an adverse action for retaliation.
•	 Serino v. U.S. Postal Service – transfer was not an adverse action, but effort to accommodate employee.

Slide 26
Was There A Non-Retaliatory Cause for the Adverse Action?
•	 Ozlek v. Potter – employer provided non-retaliatory reason for termination to defeat retaliation claim – need to resolve inconsistency between plaintiff’s medical status of his inappropriate behavior
•	 Hughes v. City of Bethlehem - retaliation claim failed when employer had legitimate reason for termination (called in sick when really in Las Vegas) 
•	 Mitchell v. GE Healthcare – employer had valid reason for referral to Employee Assistance Program for employee who was disruptive and intimidating

Slide 27
Was the Employee Engaged in a Protected Activity?
•	 Bloch v. Rockwell Lime Company - employee who was fired after opposing employer’s request for health info was not engaged in protected activity
•	 Mosley v. Potter - court found that filing for workers’ compensation is not a protected activity (May be protected under State Law)
•	 Sanchez v. City of Chicago – employee who was terminated after requesting reasonable accommodation was engaged in protected activity for retaliation claim

Slide 28
Causal Connection Between the Protected Activity and the Employer’s Adverse Action? 
•	 Background: In order to prove a retaliation claim, plaintiffs must demonstrate a causal connection between their exercise of a protected activity (e.g. filing an EEOC claim) and the employer’s adverse action (e.g. termination). 
•	 Temporal Proximity: In many of these cases, the court will look at the “temporal proximity” of the two events to determine if there was a causal connection. 

Slide 29
Causal Connection  - Case Law 
•	 Satchel v. School Bd. of Hillsborough Co. – no retaliation when plaintiff was terminated two years after requesting an accommodation 
•	 Erbel v. Dept. of Agriculture – claim for retaliation allowed to proceed when supervisor’s behavior changed after plaintiff filed with EEOC.
•	 Travis v. U.S.P.S. – Employee was disciplined for attendance problems and altercations with co-workers.  No causal connection because discipline occurred before filing with EEOC.

Slide 30
Are Retaliation Claims Limited to 
Current Employers? 
Background: In almost all retaliation claims, the alleged retaliation occurs while plaintiff is still an employee.  Can a retaliation claim be brought by a former employee?
Carr v. Morgan County School Dist. – Teacher settled ADA claim after filing with the EEOC.  School administrator revealed problem with employee during reference check.  The court refused to dismiss the claim finding that an adverse action for retaliation purposes would include harm to a former employee’s future employment prospects. 
Slide 31
Are Damages Available in ADA Retaliation Cases?
Courts Split: Courts have differed on whether plaintiffs can recover money damages in an ADA retaliation claim.  
Analysis: Historically, monetary damages were not recoverable in civil rights cases. However, the Civil Rights Act of 1991 provides for monetary damages when the defendant has engaged in “unlawful intentional discrimination.”  Some courts have held that this provision is broad enough to encompass retaliation  
Additional Implication: Plaintiffs may also be denied access to a jury trial if there are no claims in which damages can be awarded.

Slide 32
DISCIPLINE
Enforcing Workplace Conduct Rules

Slide 33
Knowledge of Disability Prior to Instituting Discipline 
•	 Standard: When a disability is known prior to instituting discipline, reasonable accommodations should be considered to enable an employee to comply with reasonable workplace and conduct rules.
•	 Bultemeyer v. Fort Wayne Community Schools – Janitor with mental illness had taken leave from work.  When he did not report for fitness for duty examination he was fired. 
•	Court: employer’s implementation of discipline was inappropriate given its past knowledge of plaintiff’s disability and needed accommodations 

Slide 34
Knowledge of Disability Prior to Instituting Discipline (cont’d)
Taylor v. Phoenixville School District – 
•	 Facts: Secretary who had worked at school for 20 years was hospitalized for bipolar disorder.  She sought accommodations, which were denied.  Instead, her work was closely scrutinized and she was disciplined routinely, even though she had never been disciplined in the previous 20 years.  She was subsequently terminated. 
•	 Court: Employer’s actions in disciplining and terminating plaintiff while denying her any reasonable accommodations may constitute ADA discrimination.
Slide 35
Workplace Conduct Rules 
Standard: It is permissible for employers to have workplace conduct rules on a variety of issues including drug and alcohol use, workplace safety, workplace violence and attendance.  
EEOC: Employers may hold all employees, disabled and nondisabled, to the same performance and conduct standards.  EEOC Compliance Manual, 902.2(c)(4) nn. 11&12.  
Supreme Court: Upheld workplace conduct rule in Raytheon Co. v. Hernandez, 124 S. Ct. 513 (2003) 

Slide 36
Cases Upholding Workplace Conduct Rules 
•	 Sever v. Henderson – Postal worker with PTSD made threats of violence in the workplace and was terminated. 
•	Court: an employer is not prohibited from discharging employee for violating workplace conduct rule, even if that misconduct is related to his disability. 
•	 Fullman v. Henderson - ADA was not violated when employee was discharged for filing a false workers' compensation claim.

Slide 37
Cases Upholding Workplace Conduct Rules 
•	 Darcangelo v. Verizon Maryland Employer can enforce a co-worker courtesy rule, even though the employee’s abusive behavior may have been related to her bipolar disorder.
•	 Sena v. Weyerhaeuser Co. 			Even if unsatisfactory performance or behavior is related to drug use or alcoholism, employer 	may hold employee to its regular workplace 	standards of conduct.  

Slide 38
Workplace Conduct Rules – Job Related and Consistent with Business Necessity? 
•	 EEOC: If misconduct resulted from a disability, the employer must be prepared to demonstrate the conduct rule is job-related and consistent with business necessity. EEOC Enforcement Guidance on ADA and Psychiatric Disabilities (3/25/97), at p. 29. 
•	 Dark v. Curry County – Truck driver with epilepsy fired for violating conduct rule when he had accident after having a pre-seizure aura.  
•	Court: Must show conduct rule was job related and consistent with business necessity.

Slide 39
Workplace Conduct Rules – Job Related and Consistent with Business Necessity? 
•	 Nielsen v. Moroni Feed Company 	Disability-caused misconduct is subject to 	performance criteria that are job-related and 	consistent with business necessity, so long as the disabled employee is given the opportunity to meet such performance criteria by a reasonable accommodation.

Slide 40
Workplace Conduct Rules – Is Conduct Related to Employee’s Disability? 
•	 Disability Related? If an employee’s misconduct is not related to the disability, discipline may be appropriate.
•	 Davila v. Qwest Corp. - Employee with bipolar disorder failed to report an accident.  
•	Court: Misconduct was unrelated to employee’s disability so employer did not violate the ADA by disciplining the employee.

Slide 41
Workplace Conduct Rules – Is Conduct Related to Employee’s Disability? 
•	 Russell v. TG Missouri Corp. - employee with bipolar disorder left work without permission. Employee did not indicate leave was related to 	her disability. Employer instituted workplace 	discipline and terminated her. 
•	Court: Discipline was warranted as employee failed to request a reasonable accommodation. Employer’s awareness of employee’s disability prior to the discipline did not alter the court’s decision. 

Slide 42
Consistent Enforcement of Discipline 
•	  Tip for Employers: Employers must enforce conduct rules and impose discipline in consistent manner.  If employer imposes a greater degree of discipline against an employee with a disability, the employer may be subject to an ADA disparate treatment claim. 
•	  Moore v. County of Cook - Plaintiff missed work related to her disability and later was terminated for failing to meet work production standards.  A non-disabled employee who failed to meet the same work production standards was only given a 3 day suspension.  
•	Court: Sufficient evidence that the harsher discipline for plaintiff arose because she had a disability.

Slide 43
Rescinding Discipline as a Policy Modification – EEOC Position
•	Rule: Employers not required to excuse past misconduct, as “reasonable accommodation is always proactive.”
•	Rationale: Employer generally must provide a reasonable accommodation only after it is requested, the employer does not have to rescind any warnings imposed prior to accommodation request. 
•	Future: Employers must make reasonable accommodation to enable employee with a disability to meet such a conduct standard in the future.

EEOC Enforcement Guidance on the ADA 
and Psychiatric Disabilities (3/25/97), at page 31.

Slide 44
Rescinding Discipline as a 
Policy Modification – Case Law
•	Davila v. Qwest Corp., Inc. – employer not required to retroactively excuse misconduct once the employer was made aware of the employee’s mental illness.  
•	Hill v. Kansas City Area Transportation Authority - employer not required to give a “second chance” to a bus driver who twice fell asleep in her bus, even though she alleged that her drowsiness was caused by her hypertension medication.  
•	Bultemeyer v. Fort Wayne Community Schools -employer had duty to rescind termination when it had knowledge of the employee’s disability and his need for reasonable accommodations.

Slide 45
Resources
•	DBTAC: Great Lakes ADA Center    
	www.adagreatlakes.org;  800/949 – 4232(V/TTY)
•	Equip For Equality
	www.equipforequality.org; 800/610-2779 (V);  800/610-2779 (TTY)
•	Illinois ADA Project
	www.ada-il.org;  877/ADA-3601 (V);  800/610-2779 (TTY)

Slide 46
More Resources
•	Job Accommodation Network 
	www.jan.wvu.edu
•	Equal Employment Opportunity Commission
 	www.eeoc.gov 
•	ADA Disability and Business Tech. Asst. Ctr. www.adata.org/dbtac.html 

Slide 47
Reasonable Accommodations for People with Psychiatric Disabilities
THE END

Slide 48
Thank you for Participating In Today’s Session
Please join us for the next session in this series: 
June 3, 2008 
Qualified As Related To Reasonable Accommodations Such As Leave, Reassignment And Job Modifications

Slide 49
Session Evaluation
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