Disabled Employees Can Now Sue for Workplace Harassment

June 6, 2001

Employers recently received some more bad news, this time from the U.S. Court of Appeals for the Fifth Circuit, the federal appellate court overseeing Texas. In a case of first impression, the Fifth Circuit held that disabled employees can sue their employers for workplace harassment under the Americans with Disabilities Act ("ADA"). The ADA prohibits discrimination against a qualified disabled employee because of their disability in regard to terms, conditions and privileges of employment.

The Court, in reaching its decision, relied heavily on Title VII of the Civil Rights Act of 1964 ("Title VII"), which prohibits discrimination on the basis of race, sex, national origin, etc.. Title VII has, for years, been judicially interpreted to authorize claims of workplace harassment. Title VII and the ADA are strikingly similar in their language, as well as their purposes and remedial structure. Based on the strong similarities between these two laws, the Court concluded that hostile work environment claims are actionable under the ADA, just as they are under Title VII.

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.

The disability-based harassment must be "sufficiently pervasive or severe to alter the employee's conditions of employment and create an abusive working environment." In determining whether a work environment is abusive, Courts consider the frequency of the complained of conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. This is the same legal standard employed by Courts when examining hostile work environment claims under Title VII.

There is some good news in all this; the Court has made it clear the Ellerth/Faragher affirmative defense is available to employers, just like in Title VII cases. This defense allows employers to insulate themselves from liability for harassment charges if they can show they exercised reasonable care to prevent and correct harassing behavior (which requires an effective anti-harassment policy), and the complaining employee unreasonably failed to utilize the employer's internal complaint procedure. This defense, however, can only be sustained if employers educate their employees and supervisors about harassment and other inappropriate workplace behavior. Training is an employer's first line of defense and should be conducted on an annual basis by a qualified trainer.

Firm Highlights


The Importance of Strategic Transitions

Transitions versus change, what’s the destination and why is this important for a business?  Kevin talks with Gwen Gierke from Gierke Jungbauer on how they help to manage transitions. Transition happens in three stages: the ending, the neutral zone, and...


COVID-19 Response Team - Resources and Updates


U.S. Supreme Court Settles Issue of Title VII Protections for LGBTQ+ Employees

Headshot of Stephanie Rojo

Thompson Coe Saves Client $100Ks in Damages After 3-Day Trial


The 2020 HR Recap

We’ve made it to the recap episode! The good, the bad, the ugly, and everything in between. Join Kevin and Elaine (Lainey) Luthens as they discuss it all including FFCRA legislation, OSHA, what they...

News Item

Thompson Coe Welcomes Partners Kenya Bodden and Patrick Kelly



Individual Coverage HRA. What is it? What are the benefits and drawbacks? What companies are a good fit for ICHRAs versus group health plans? Kevin talks with Matt Hollister, President and CEO of Business...


Supreme Court Reaffirms and Clarifies Ministerial Exception to Employment Discrimination Laws Under First Amendment’s Religion Clause


The Tale of OCS and the Coronavirus

How has Opportunity Community Services survived during this pandemic and Phase 1? Rose Kukwa of Opportunity Community Services and Dennis Van Norman with Van Norman & Associates share their experience.  Rose and her team...


The COVID-19 Vaccine Part 1