Disability-based harassment: standing and standards for a 'new' cause of action.

• Author: Tahvonen, Holland M.

The Equal Employment Opportunity Commission (EEOC) received 80,000 ADA-based complaints between 1992 and 1997; twelve percent, or approximately 9600, were harassment related. (1) Like women and minorities, people with disabilities have faced barriers in obtaining and maintaining employment in the American workplace. (2) The eagerly-awaited and much-heralded Americans with Disabilities Act of 1990 (ADA) (3) was enacted to provide legal recourse for individuals who have suffered discrimination on the basis of a disability. (4) Nevertheless, it was not until eleven years later that a federal court of appeals explicitly recognized a cause of action for disability-based harassment. (5)

On March 30, 2001, the United States Court of Appeals for the Fifth Circuit held that the ADA embodies a claim for disability-based harassment. (6) A mere two weeks later, the Fourth Circuit followed suit, declaring that a hostile work environment claim is cognizable under the ADA. (7) Though not the only courts to confront the issue, (8) the Fourth and Fifth Circuits were the first to explicitly recognize the cause of action. These cases provide a necessary and critical extension of existing harassment law, but questions remain unanswered regarding who may assert such claims and the appropriate standard to apply in determining whether the alleged conduct is actionable.

Despite the similarity of the holdings in Flowers v. Southern Regional Physician Services, Inc. (9) and Fox v. General Motors Corp., (10) the two circuit courts parted ways in their analyses of the elements required to establish a prima facie case of disability harassment. Whereas the Flowers court required that a plaintiff prove that she is a member of the "protected class," (11) the Fox court held that a complainant must be a "'qualified individual with a disability.'" (12) To the extent that there is a difference between these two standards, and this Note argues that there is, the effect of accepting one standard over the other could be profound.

A further issue not raised in either Flowers or Fox is the appropriate standard to determine whether an employer's statements and/or conduct constitute actionable harassment. Although the Supreme Court, at least in the context of sexual harassment, has employed both objective and subjective tests to ascertain whether conduct is sufficiently severe and pervasive to be unlawful under Title VII, (13) scholarly debate continues to rage about whether the "reasonable person" standard provides sufficient protections for the concerns of women, minorities, and people with disabilities. Plaintiffs and disability law scholars have argued that disability based harassment must be judged from the perspective of a "reasonable person with the same disability" in order to adequately protect the wide variation of interests among people with different disabilities. (14)

This Note will address the rationale for extending the availability of hostile work environment claims to individuals with disabilities, explore which types of plaintiffs should be protected, and examine the appropriate standard to determine when conduct constitutes harassment for purposes of the ADA. Part I traces the development of harassment law under Title VII in order to shed light on the methodological approach generally employed in harassment cases and emphasizes the value of a consistent approach to rights-based legislation. Part II sets forth the case for disability harassment, examines the analyses employed by the Fourth and Fifth Circuits, and evaluates the elements of a prima facie disability harassment case. This Part concludes that a plaintiff's qualifications are irrelevant in a harassment suit, and further suggests that courts should consider the effect that limiting the definition of disability Will have on these types of cases. Finally, Part III analyzes the appropriate standard for assessing whether an employer's conduct is sufficiently severe and pervasive to be actionable under the ADA, and ultimately argues that the costs of employing a disability-focused standard outweigh the benefits.

1. THE DEVELOPMENT OF HARASSMENT LAW UNDER TITLE VII

   Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...." (15) Despite the fact that harassment is nowhere mentioned in the statute, it nevertheless emerged as a cause of action under Title VII as courts began to recognize that it could, in effect, alter the terms and conditions of an individual's employment. (16)

   The recognition of sexual harassment as a cognizable legal claim was spurred by the work of Professor Catharine MacKinnon (17) and was first officially acknowledged by the United States Supreme Court in Meritor Savings Bank v. Vinson. (18) Two distinct forms of the claim are regularly articulated: quid pro quo harassment (19) and hostile work environment harassment. (20) The Meritor Court defined and developed guidelines for analyzing a hostile environment claim, largely adopting the model set forth by the EEOC. (21) According to the Court, a plaintiff can establish a claim for hostile work environment harassment by proving that (1) she encountered "'sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature"; (22) (2) the conduct was unwelcome; (23) (3) the conduct had "the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment"; (24) (4) the conduct was based on her sex; (25) and (5) the harassment was "sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" (26)

   However, the Court's opinion in Meritor raised as many questions as it answered. Lower courts were left to determine important issues such as

   whether conduct of a sexual nature was unwelcome, whether such conduct was severe or pervasive enough to support a claim, whether severity or pervasiveness should be judged by a subjective or an objective standard, whether a "reasonable person" or a "reasonable woman" standard should govern assessment of severity or pervasiveness, whether a victim must establish psychological harm and, importantly, under which circumstances an employer may be held liable for sexual harassment engaged in by supervisors, coworkers, or even customer. (27) Seven years later, in Harris v. Forklift Systems, Inc. (28) the Supreme Court clarified some of these issues. Most notably, the Harris Court held that the appropriate standard for determining whether conduct is harassing is both objective and subjective. (29) In other words, to be actionable under Title VII, both the proverbial "reasonable person" and the victim herself must perceive the environment as hostile or abusive. The Court also recognized, however, that a determination of hostility or abusiveness is not "a mathematically precise test," (30) but "can be determined only by looking at all the circumstances." (31) A trier of fact should consider frequency, severity, the physical or verbal nature of the conduct, and the level of interference with the victim's work performance. (32)

2. THE CASE FOR DISABILITY-BASED HARASSMENT

   The ADA is built upon the civil rights approach adopted by Title VII, (33) and consequently, disability harassment as a cause of action is modeled after the Title VII harassment claim. (34) Courts that have explicitly recognized a hostile environment claim under the ADA have posited that the parallel purposes, language, and remedial structures of the statutes not only justify, but "command [al conclusion that the ADA provides a cause of action for disability-based harassment." (35)

   Both statutes share the common purpose of eradicating discrimination against groups historically treated as second-class citizens. Whereas the proclaimed purpose of Title VII is "to eliminate ... discrimination in employment based on race, color, religion, or national origin," (36) the explicitly stated purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." (37) The drafters of the ADA recognized that individuals with disabilities, like women and racial minorities, have long faced isolation, segregation, and discrimination not only in the workplace, but in almost every aspect of life, and have often had no recourse to a legal remedy. (38) And as with Title VII, it would be unfathomable for the legislature to open the doors of the American workplace to people with disabilities only to have them forced out by harassing behavior.

   Similarly, the language of the ADA mirrors that of Title VII, prohibiting discrimination "against a qualified individual with a disability because of the disability of such individual in regard to [employment-related practices] and other terms, conditions, and privileges of employment." (39) The Supreme Court has construed the "terms, conditions, and privileges" language in Title VII as a means to "'strike at'" harassing behavior in the workplace? Thus, to provide consistency in statutory interpretation and equality of protection, the language of the ADA is justifiably read as providing a basis for a harassment cause of action.

   1. Assuming a Cause of Action

      Disability-based harassment is not a rarity in the workplace. As previously noted, the EEOC receives thousands of harassment-related ADA complaints every year. (41) Prior to Flowers and Fox, when confronted with these types of grievances, appellate courts assumed, without actually tackling the question directly, that a cause of action for disability-based harassment indeed...