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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.

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