Earlier this month, the Seventh Circuit Court of Appeals joined several other federal courts of appeal by explicitly holding that a claim for hostile work environment based on disability is cognizable under the ADA. Ford v. Marion County Sheriff’s Office, et al., No. 18-3217 (7th Cir. 11/15/19).
Ford worked as a deputy for the Marion County Sheriff’s Office when she suffered a debilitating injury to her hand. She was assigned to light duty, but the hand never fully recovered and continued to cause significant pain. Eventually, she transferred to a position in the jail visitation office.
While employed as a visitation clerk, Ford claimed she faced disability harassment for several years at the hands of several coworkers. Coworker Ladd bullied her, was unhelpful, mocked her workplace accommodations, adjusted her chair into uncomfortable positions, and engaged in loud phone conversations that disrupted work. She also made disparaging comments about Ford’s disability and pushed her with a chair.
Ladd eventually left, and coworker Hendricks joined the visitation office. Ford claimed that Hendricks commented “about getting a gun and blowing [Ford]’s brains out” (Hendricks denied this) and, “it’s a good thing I don’t have a gun.” Ford, whose disability excused her from work at the “Main Control Office,” also presented evidence that Hendricks took issue with having to work shifts at “Main Control” and harassed Ford because of her disability by telling her that she should have to prove she was disabled to avoid “Main Control” duty and that she needed to go to “Main Control” to see how hard it was. Hendricks joked about “catching” carpal tunnel syndrome. During a dispute involving Ford, another individual, Crear, commented, “anyone who was supposedly in as much pain as [Ford] was claiming to be in would not have the energy to be up in front of the Supervisor’s desk, waiving [her] arms around.” As a result of these incidents, Hendricks was promptly transferred.
Ford brought a disability-based harassment claim, among others. The district court granted summary judgment on some of the claims, while a jury returned a verdict for the Sheriff’s Office on the others. Ford appealed the summary judgment decision.
On appeal, the Seventh Circuit affirmed. First, the Court explicitly held that hostile work environment claims are actionable under the ADA. To prove this claim, a plaintiff must present evidence that (1) he or she was subject to unwelcome harassment; (2) the harassment was based on his or her disability; (3) it was so severe or pervasive as to alter the conditions of his or her employment and create a hostile work environment; and (4) there is a basis for employer liability. The Court noted that employers are generally strictly liable for acts of harassment by supervisors involving a tangible employment action, but only for harassment by co-workers if the employer was negligent in discovering or remedying the harassment.
Applying this standard, the Court found that there were only three events that could suffice as disability-based harassment: (1) Hendricks’s comment that Ford should need to prove her disability, which a supervisor overheard; (2) Crear’s comment questioning whether Ford was “in as much pain as [she] was claiming to be”; and (3) Hendricks’s suggestion that Ford was faking her disability, which Ford reported in writing to a supervisor. The Court found that the first two incidents were merely offhand comments insufficient to comprise harassment and failed to put the Sheriff’s Office on notice that Ford was being harassed because of her disability. As to the third comment, because the Sheriff’s Office responded to Ford’s complaint by transferring Hendricks the following month, there was no negligence in responding to the complaint and no corresponding basis for liability.
The Court noted that it now is part of several other circuits in holding affirmatively that harassment under the ADA is actionable, including the Fourth Circuit. See Fox v. General Motors Corp., 247 F.3d 169, 175-76 (4th Cir. 2001). It also recognized that several circuits, including the District of Columbia, had “assumed without deciding” that disability-based harassment claims are actionable. See Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 236 (D.C. Cir. 2018).