Hostile Work Environment Issues and Demotion as a Reasonable Accommodation

Next week is Thanksgiving week. My daughter has that entire week off. So, I am not sure about a blog entry for next week.

 

I have a whole bunch of cases in my pile that I can blog on. When I was going through them this morning, I ultimately decided to blog on a couple of cases dealing with hostile work environment and the ADA. I have blogged on hostile work environment and the ADA before, here. At the time I previously blogged on it, it wasn’t entirely clear whether hostile environment claims applied to the ADA at all. Now, it is becoming increasingly clear that hostile work environment claims do apply to the ADA. Most recently, the Tenth and Seventh Circuits have held as much. Considering the Seventh Circuit has not been particularly friendly to persons with disabilities, that holding is particularly significant. The Seventh Circuit case, which is published, also raises the question of whether hostile work environment claims can ever be split into two and whether a demotion can ever be a reasonable accommodation. As usual, the blog entry is divided into categories and they are: Mestas v. Town of Evansville, Wyoming; Ford v. Marion County Sheriff’s Office, which is then divided into subcategories of: basic facts taken directly from opinion; issues presented and holdings; court’s reasoning viability of hostile work environment claims; court’s reasoning severability of hostile work environment claim; court’s reasoning demotion as a reasonable accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Mestas v. Town of Evansville, Wyoming

 

In this particular case, the Tenth Circuit in an unpublished opinion, basically held that hostile work environment does apply to ADA claims, though it didn’t explicitly say so. Also, worthwhile noting is the court said that for retaliation claims a plaintiff does not have to show he or she suffers from an actual disability. Rather, plaintiff only has to show he or she had a reasonable good faith belief he or she had a disability. In this particular case, the court said plaintiff brought forth enough facts create a question of fact for a jury with respect to retaliation and hostile work environment.

 

Ford v. Marion County Sheriff’s Office

 

I

Basic Facts Taken Directly from Opinion:

 

Plaintiff Brigid Ford worked as a deputy in the Marion County Sheriff’s Office until her hand was seriously injured in a car accident while on duty. After assigning Ford to light duty for about a year, the Sheriff’s Office told Ford that she must either transfer to a permanent position with a cut in pay or be terminated. After some back and forth, Ford accepted a civilian job as a jail visitation clerk. In the following years, Ford alleges, she suffered disability- 2 No. 18-3217 based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford sued the Sheriff’s Office for discriminatory employment practices in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. The district court granted summary judgment on most of Ford’s claims. Two claims were tried to a jury, which rendered a verdict for the defense.

 

II

Issues Presented and Holdings:

 

1. Is a hostile work environment actionable under the ADA? (Yes)
2. Can a hostile work environment claim ever be separated by the court into two different hostile work environment claims? (Yes)
3. Can a demotion be a reasonable accommodation? (Yes)

 

III

Court’s Reasoning Viability of Hostile Work Environment Claims

 

1. Every Circuit to consider the question of whether a hostile work environment claim exists under the ADA has held it does.
2. Congress wrote the ADA using the language of title VII, and title VII recognizes hostile work environment claims.
3. Five Circuits have held that hostile work environment claims are permitted under the ADA (Fourth, Fifth, Eighth, and Tenth). Further, the First, Third, Ninth, Eleventh, and D.C. Circuits have assumed without deciding that such claims are possible.

 

IV

Court’s Reasoning Severability of Hostile Work Environment Claims

 

1. Hostile work environment claims can be severed after looking at three factors: a significant gap between alleged incidents of discriminatory harassment; a change in managers; and intervening action by the employer.
2. With respect to time, no magic number exists. Rather, the question is whether the series of allegations describe continuous conduct rather than isolated incidents. In this particular case, there was a gap of 18 months between the two series of disability harassment.
3. With respect to a change in manager, while routine personnel actions are not sufficient to break up hostile work environment claims, a change in supervisor, which happened here, is.
4. With respect to intervening action, prompt and appropriate corrective action reasonably likely to prevent harassment from occurring beats employer liability for coworker harassment. In this case, the alleged first set of harassers were removed permanently. Accordingly, such removal brought an end to the unlawful employment practice at issue. Also, incidental rotation of coworkers not calculated to address the harassment does not sever the hostile work environment claims. Rather, it has to be a transfer amounting to intervening action by the employer in order to close out a distinct unlawful employment practice before the hostile work environment claim can be severed. Permanent removal of supervisors qualifies in either situation.

V

Demotion as a Reasonable Accommodation

 

1. A demotion can be a reasonable accommodation when the employer cannot accommodate the employee with the disability in his or her current or prior jobs or in an equivalent position.
2. The ADA does require an employer to offer an employee a vacant position that more closely matches his or her previous job.
3. The EEOC’s interpretive guidance said that an employer may reassign an individual to a lower graded position if there are no vacant equivalent position that the individual was qualified to do with or without reasonable accommodations.
4. The 10^th Circuit has said and the court in this case agrees, that the employer should first consider a lateral move to positions regarded as equivalent before demoting an employee.
5. For a plaintiff to prevail on the question of whether the employer did not consider first a lateral move to positions that were equivalent, the plaintiff has to come forward with evidence that a more equivalent position for which he or she would qualify was vacant at the relevant time, which the plaintiff did not do in this case.
6. In the Seventh Circuit, a problem in the interactive process is not actionable in and of itself because the ADA looks at ends and not means.

 

VI

 

Takeaway/Thoughts

 

1. It’s becoming really clear that a hostile work environment claim is a viable claim under the ADA providing traditional hostile work environment principles are met.
2. For purposes of proof at trial as well as for purposes of statute of limitations, attorneys want to keep in mind that circumstances exist as to when hostile work environment claims can be severed into separate hostile work environment claims.
3. The three factors to consider when deciding whether hostile work environment claim can be severed do appear to stand on their own. However, if Ford is any guide, a court will look to all three of the factors even if one of them might be the deciding factor.
4. A demotion under certain circumstances can be a reasonable accommodation. While the burden is on the plaintiff to show that a more equivalent position that he or she was qualified for was vacant at the relevant time, as a matter of preventive law, it makes sense for the employer to assist the employee in helping to determine whether any such vacant positions exist (see also this blog entry discussing mandatory reassignment). An employer that leaves it entirely open to the plaintiff to figure out whether there are equivalent vacant positions would leave themselves open to a claim that a more equivalent position was not really considered by the employer. If you’re the employer, why bother to take such a chance. Also, by providing assistance to find equivalent positions, you probably lessen the chance of litigation to begin with, and you certainly lessen the chance of successful litigation by the plaintiff.
5. As we have mentioned before, such as here, the Circuits are all over the place with respect to whether violation of the interactive process is actionable in and of itself. Very much depends upon the jurisdiction.

 

Happy Thanksgiving!