7th Circuit Recognizes ADA Disability Harassment Claim

On November 15, 2019, the 7th Circuit affirmed an order of summary judgment in favor of an employer-defendant in a lawsuit under the Americans with Disabilities Act ("ADA").  Ford v. Marion County Sheriff's Office, et al., No. 18-3217 (7th Cir. 11/15/2020).  The plaintiff worked as a deputy in the Marion County Sheriff's Office, until her hand was injured in a car accident while on duty.  After assigning her to light duty work for about a year, the Sheriff's Office informed her that she must either transfer to a permanent position with a pay cut or be terminated.  She accepted a new position as a jail visitation clerk.  The plaintiff alleged that subsequently, she suffered disability-based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials.  She sued the Sheriff's Office for discriminatory employment practices under the ADA.

The ADA prohibits employment discrimination on the basis of disability.  The ADA also prohibits retaliation against an employee for asserting her rights under the ADA.  The duty to provide an employee with a reasonable accommodation for a disability is specific to the ADA.  A plaintiff must first demonstrate that the requested accommodation is reasonable on its face.  Then the burden shifts to the employer to prove that the accommodation would impose an undue hardship on its business operations.  A hostile work environment occurs over a series of days or years, and, in contrast to discrete acts, a single act of harassment may not be actionable on its own.  Hostile work environment clams have their legal basis in the phrase "terms, conditions, and privileges of employment" in the ADA and other employment discrimination statutes.  A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the employee's employment and create an abusive working environment.  A hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice. 

The 7th Circuit held, on a question of first impression in its circuit, that hostile work environment claims are cognizable under the ADA.  The 7th Circuit based its holding on decisions from other circuits that held that a plaintiff may assert a claim for an unlawful hostile work environment on the basis of disability under the ADA.  Thus, the 7th Circuit stated that "[w]e adopt the position of our colleagues who have recognized hostile-work environment claims under the ADA." 

To survive summary judgment on a disability-based hostile work environment claim, a plaintiff must present evidence that: (1) she was subjected to unwelcome harassment; (2) the harassment was based on her disability; (3) the harassment was so severe or pervasive as to alter the conditions of her employment and create a hostile or abusive working environment; and (4) there is a basis for employer liability.  Employers are strictly liable for harassment committed by supervisors, but liable for harassment by co-workers only if the employer was negligent either in discovering or remedying the harassment.  The incidents at issue, which consisted mostly of disability-related comments and remarks, did not rise to the level of conduct sufficiently severe or pervasive to have altered the conditions of the plaintiff's employment, such that it created an abusive working environment.  The incidents, at worst, amounted to offhand comments, isolated incidents, and simple teasing.