Second Circuit Holds that Hostile Work Environment Claims are Cognizable under the Americans with Disabilities Act

Case Name: Fox v. Costco Wholesale Corporation

Date of Opinion: March 6, 2019

Opinion by: Judge Hall


In this decision, the Second Circuit held that hostile work environment claims are cognizable under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 et seq.

Plaintiff-Appellant Christopher Fox has suffered from Tourette’s Syndrome and Obsessive‐ Compulsive Disorder (“OCD”) since birth. In 1996, he started working for Costco’s Holbrook, New York warehouse. During his long tenure, he worked on the floor crew, as an Assistant Cashier, Cashier, and Greeter. In 2013, while Fox was working as a Greeter, he was reprimanded twice by an Assistant Manager who was not his immediate supervisor, for leaving the Costco entrance area and for leaving a cart unattended in front of the freezers. There was no formal disciplinary action. Costco’s management received two customer complaints about Fox’s behavior in 2013 and 2014 while he was working as a Greeter. Both complaints were from female customers who took issue with comments Fox made to them, one about her appearance, and the other, about his love for her. After the first complaint, General Manager Larry Resnikoff addressed the matter with Fox and warned him he would terminated if it happened again. After the second complaint, Resnikoff asked Fox to write down what happened, then suspended Fox for three days without pay and transferred him to an Assistant Cashier position so he would have less direct contact with customers. The transfer was made in lieu of Fox’s termination, and neither his salary nor his benefits were reduced as a result.

Once he began his position as an Assistant Cashier, other Costco employees bullied Fox. His neurological condition often caused him to touch the floor before moving, and he would often cough when he felt a verbal tic coming on, in order to prevent others from hearing him swear. The Costco employees mocked him by making “hut-hut-hike” remarks to mimic his verbal and physical tics. Additionally, Fox was denied his breaks on a couple occasions in 2014. Fox emailed Costco’s CEO Craig Jelinek in March 2014 to explain his working conditions and his concern that the recent change in atmosphere was causing him stress and aggravating his symptoms. Fox did not mention the “hut-hut-hike” comments. Even though Fox had not followed Costco’s internal procedures for filing complaints, Resnikoff initiated an investigation, interviewing employees and transferring one of the perpetrators to another position. After the investigation, Costco employees continued to treat Fox poorly because of his disability. In November 2014, Fox suffered a panic attack while he was at work, for which he required medical attention. He has been on indefinite medical leave since the anxiety attack.

In January 2015, Fox sued Costco for disability discrimination under the ADA and New York State Human Rights Law (“NYSHRL”), alleging hostile work environment, disparate treatment, failure to accommodate, and retaliation. The U.S. District Court for the Eastern District of New York granted summary judgment to Costco on all of Fox’s claims, determining that the record did not sufficiently support any of Fox’s theories of recovery.

On appeal, the Second Circuit affirmed in part the district court’s judgment dismissing the disparate treatment, failure to accommodate, and retaliation claims. However, it vacated in part the order barring Fox’s hostile work environment claim and remanded it for further proceedings, after finding that such claims are cognizable under the ADA and that there are disputes as to material facts with regard to Fox’s claim.

In affirming the dismissal of Fox’s disparate treatment claim, the Second Circuit found Fox had failed to show he suffered from an adverse employment action because of his disability. The Court found the reprimands, position transfer, and Fox’s lack of a few breaks did not constitute adverse employment actions as they had no tangible effect on his employment. Further, Fox failed to introduce evidence showing that these actions were the result of his disability. Similarly, regarding his retaliation claim, the Second Circuit found Fox did not suffer adverse employment actions in connection with his email to Jelinek, a protected activity. Even if he had, he failed to provide sufficient evidence of a causal nexus between his protected activity and the alleged adverse employment actions he suffered. As for Fox’s claims for failure to accommodate, the Second Circuit held these were properly dismissed as Fox never asked Costco for an accommodation, and failed to identify a reasonable accommodation that Costco refused to provide.

In holding that hostile work environment claims are cognizable under the ADA, the Second Circuit relied heavily on the decisions of sister circuits and the legislative history of the ADA.  Specifically, the Court acknowledged that Congress included in the ADA a legal term of art from Title VII, prohibiting discrimination on the basis of disability with respect to a qualified individual’s “terms, conditions or privileges of employment.” Hostile work environment claims are cognizable under the ADA because the ADA “echoes and expressly refers to Title VII, and because the two statutes have the same purpose—the prohibition of illegal discrimination in employment.”

To prevail on a hostile work environment, claim under the ADA, the Second Circuit held Fox must show: (1) that the harassment was “sufficiently severe or pervasive” so as to alter his employment conditions and create an abusive environment, and (2) that there is a “specific basis” for imputing the objectionable conduct to the employer. The Second Circuit determined there was a dispute of material fact as to whether Fox’s work environment was objectively abusive, based on Fox’s “hut-hut-hike” allegations and his claim that the abuse occurred in front of, and within earshot of Costco’s management over a period of months. Noting that NYSHRL claims are analyzed as ADA claims, the Court thus reinstated both of Fox’s hostile work environment claims under the federal and state laws on remand. 

Summary by: Amanda Brody




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