Many employees experience a hostile work environment after suffering a disability. This may be due to other employees who are concerned that they must pick up the slack of the disabled employee or a supervisor who is concerned that the disabled person is not pulling their weight. Can a disabled person file a hostile work environment claim since “disability” is protected under the Americans with Disabilities Act? It appears so, and several district courts have recognized the claim.

What Qualifies as a Hostile Work Environment?

In Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002), the court established the elements for a hostile work environment claim which involved racial discrimination. This requires more than the utterance of one epithet but multiple discriminatory comments for it to rise to the level of a claim.

According to the Miller case, a hostile work environment claim must allege the following:

• That the employee belongs to a protected group,
• That the employee has been subject to unwelcome harassment,
• That the harassment must have been based on a protected characteristic of the employee,
• That the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment, and
• That the employer is responsible for such an environment under either a theory of vicarious or direct liability.

Hostile Work Environment Based on Disability

If an employee develops a disabling condition that requires a reasonable accommodation and they properly make a request under the Americans with Disabilities Act, it would be wrongful to target that employee with insults and uncivil behavior.

The courts have articulated where the line is drawn as to whether the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and created a discriminatorily abusive work environment. The 11th Circuit has found that the conduct necessarily has a subjective and objective component. See, Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999).

The Court's considerations to show that the harassment was sufficiently severe or pervasive involves another four factors:

• The frequency of the harassing conduct
• The severity of the conduct
• Whether the conduct was physically threatening or humiliating or was a mere offense of utterance, and
• Whether the conduct unreasonably interfered with the employee's job performance.

Isolated incidents of simple teasing or an offhand comment, even though inappropriate, may not rise to the level of a hostile work environment based on disability. Obviously, merely working in what one might consider a hostile work environment is not enough to establish a claim. However, repeated hostility directed toward a person with a disability who is seeking a reasonable accommodation might be enough.

If you are disabled and feel that you have been subjected to a hostile work environment based on your disability, you may have a claim. Contact us today to assist you with your claim as it relates to your disability. The disability attorneys at The Martin Law Group have solely focused on ERISA claims for over 25 years. We are here to help.