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Disabilities-Based Harassment Trend

April 14, 1999
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Related Topics: Disabilities, Harassment, Featured Article
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D. Kevin Dunn, Esq., of the Council on Education in Management, discusses an interesting recent ADA case, followed by the HR impact:

A federal jury in New Jersey awarded $227,000 to a dyslexic radio dispatcher who alleged his employer, the state's Department of Environmental Protection, maintained a hostile work environment in violation of the Americans with Disabilities Act. While somewhat unique, the case is part of an emerging trend of which employers must be aware and take precautions.

In the case, Lanni v. State of New Jersey Department of Environmental Protection, Philip Lanni, an employee with a life-long dyslexic learning disability, alleged that he was subjected to constant ridicule and jokes about his disability. Lanni contended that his co-workers would often use disability-related epithets toward him and make faces and sounds imitating retarded persons when addressing him. Lanni also alleged numerous instances of physical abuse by his co-workers.

This case is one of only a few addressing the issue of ADA harassment based on a mental disability. In 1995, a federal court in Georgia addressed the issue when it denied summary judgment to an employer and ruled that a jury could find that the employer had maintained a hostile work environment. Similar cases are already arising and are sure to grow as evidenced by the following cases.

In November 1998, an Oregon appellate court affirmed a disabilities-discrimination jury verdict against a printing company that did not correct a disability-based hostile environment. In that case, Wheeler v. Marathon Printing, Inc., Edward Wheeler was an employee who began to experience workplace teasing. The court found that a co-worker verbally abused him daily. Wheeler's attempts to get his supervisor to address the issue failed.

Wheeler attempted suicide and was diagnosed with depression. Wheeler returned to work four days after his suicide attempt and again asked his supervisor if he could be separated from his abuser, but nothing was done.

Eventually, the supervisor interviewed the offending employee. This employee made statements to the effect that Wheeler was "mental," "delusional," and "out of his mind." A jury found in favor of Wheeler and against both his employer and the offending employee individually.

In a September 1998 Pennsylvania case, Vendetta v. Bell Atlantic Corp., an employee alleged that her company created a hostile work environment after she returned from cancer treatment. In that case, the trial court let the issue go to the jury. The court borrowed standards from hostile work environment claims under Title VII to analyze the issue.

Employer Notes: Employers must be aware that these cases are sure to increase in number. The best advice is to be on the lookout for harassment based on an employee's known or potential disability. What may seem like bullying or locker-room teasing could turn out to be the basis of an ADA hostile environment lawsuit.

Employers should proceed using the same legal standards applicable to potential sexual harassment, such as conducting a prompt inquiry of all incidents and taking remedial action designed to end the harassment.

Reprinted by permission of Council on Education in Management (March 1999) with the understanding that in publishing this material, the publisher is not engaged in rendering legal advice. If legal advice or other expert assistance is required, seek the advice of an attorney. Council presents employment law seminars nationwide for HR professionals and publishes the Personnel Law Update newsletter.

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