Incivility not same as workplace harassment

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Bob Lawson Jr. is an attorney with Blackwell Sanders Peper Martin LLP.|ret||ret||tab|

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In the last few years, the U.S. Supreme Court has scrutinized certain issues relative to the Americans With Disabilities Act.|ret||ret||tab|

For example, the court has tackled what it means to be "disabled," and therefore, whether one is entitled to the statute's protections. As a result, some commentators feel the court narrowed the application of the ADA while others feel the court's rulings properly reflect the true intent of the statute. Notwithstanding, myriad issues still remain undecided as the federal courts continue to hone the ADA's legislative purpose.|ret||ret||tab|

On Dec. 1, 2003, the U.S. Court of Appeals for the Eighth Circuit (which includes the Missouri federal courts) issued a decision. Specifically, the court addressed whether one can bring a lawsuit based on harassment of one's disability under the ADA and the Missouri Human Rights Act. |ret||ret||tab|

In Shaver vs. Independent Stave Co., the court joined the Fourth and Fifth circuit courts of appeals that a claim for a hostile work environment under the ADA is, in fact, actionable. |ret||ret||tab|

In Shaver, the plaintiff suffered from nocturnal epilepsy, an affliction he had from the time he was a teenager. A portion of the plaintiff's brain was removed and replaced by a metal plate. Subsequently, the plaintiff was able to get a job working at the defendant's timber mill. |ret||ret||tab|

Later, he was fired, allegedly for insubordination. |ret||ret||tab|

The plaintiff sued his former employer claiming he was wrongfully discharged because of his epilepsy and cranial operation. |ret||ret||tab|

Shaver claimed he was verbally harassed by his co-employees, who routinely referred to him as "plate head." Additionally, he claimed, his coworkers regarded him as "stupid" and "not playing with a full deck."|ret||ret||tab|

In its ruling, the court noted the ADA prohibits an entity from discriminating against a qualified individual with a disability in regard to one's "terms, conditions and privileges of employment." Because the ADA borrowed the phrase "terms, conditions and privileges of employment" directly from Title VII of the Civil Rights Act of 1964, and hostile work environment (harassment) claims have been recognized under Title VII since 1986, the phrase "prohibits a broad range of employment practices, including workplace harassment." |ret||ret||tab|

In the court's opinion, as the ADA was implemented in 1991, the inclusion of this phrase in the statute should prohibit workplace harassment based on one's disability, too. |ret||ret||tab|

Similar to a Title VII claim, in Shaver, the court outlined the following factors to be used to analyze a hostile work environment claim under the ADA: Mr. Shaver must show that he is member of the class of people protected by the statute; that he was subject to unwelcome harassment; the harassment resulted from his membership in a protected class; and the harassment was severe enough to affect the terms, conditions or privileges of his employment. Notwithstanding, the court held the verbal harassment of Shaver did not rise to the level of conduct to be considered "harassment" when compared to other similar cases. |ret||ret||tab|

Although the Eighth Circuit has now recognized this cause of action, one can see future litigation will focus on whether the employee can present evidence to sustain these factors, particularly whether the conduct was subjectively and objectively offensive. In this regard, the court reminded us that anti-discrimination laws do not create a general civility code." Therefore, not every offensive comment, statement or behavior automatically creates an actionable lawsuit. |ret||ret||tab|

On a related note, the Seventh Circuit Court of Appeals also recently issued a decision that received a lot of attention concerning the ADA. In addressing damages which may be available for one asserting an ADA retaliation claim, that court ruled an individual is not entitled to compensatory or punitive damages. The court acknowledged a split among the federal courts across the country that have addressed this same issue. |ret||ret||tab|

Of particular interest, though, is the fact that the Seventh Circuit Court cited a Missouri District Court opinion issued in 1999, which supports the proposition that such damages are not available for such a retaliatory discharge claim. This will be an issue closely followed by employment lawyers. |ret||ret||tab|

Finally, on Feb. 26, the Eighth Circuit held that receipt of state disability benefits does not automatically preclude an ADA claim. It is emphasized in this case, though, that the employee did not make a representation that he was totally and permanently disabled in his application for disability benefits. Therefore, the court indicated there was no inconsistency between the employee's successful application for disability benefits and his ADA claim that he could perform essential functions of his job. |ret||ret||tab|

As with other state and federal employment statutes, the ADA continues to evolve. |ret||ret||tab|

Stay tuned. |ret||ret||tab|

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