Disability Harassment: When Is it Illegal?

Employees with disabilities are protected from discrimination and harassment at work by the Americans with Disabilities Act (ADA). This federal law applies to employers with 15 or more employees. (Many states also have laws against disability discrimination, and some of these state laws apply to smaller employers.)

The ADA protects disabled workers in two ways:

• It makes workplace discrimination against employees with disabilities illegal, and
• It requires employers to make reasonable accommodations to allow qualified employees with disabilities to do their jobs.

Like other laws that protect you from discrimination, the ADA also prohibits workplace harassment—unwelcome conduct based on your physical or mental disability. Harassment can take many forms, such as:

• name-calling
• cruel jokes
• mean comments, or
• threats and actions against a disabled employee.

Disability harassment can also include more extreme behavior like tampering with an employee's equipment or workspace or physically intimidating an employee with a disability. Below, we explain what disability harassment is and what to do if you're facing harassment in the workplace.

What Is Disability Harassment Under the ADA?

Harassment is a form of disability discrimination. It occurs when an employee is subjected to unwelcome actions, comments, or conduct because of the employee's disability—or perceived disability. Anyone in the workplace can be guilty of disability harassment, including:

• coworkers
• supervisors (whether it's your supervisor or another supervisor), or
• third parties (such as clients or vendors).

But stray comments, mild teasing, or even an occasional joke about an employee's disability aren't necessarily illegal.

When does this type of behavior cross the line to become unlawful harassment? If one of the following is true, it's disability harassment, and it's illegal:

• You have to put up with unwelcome conduct as a condition of keeping your job.
• The conduct is so severe or pervasive that it creates a "hostile work environment."

Putting Up With Disability Harassment to Keep Your Job

The first type of harassment is sometimes called "quid pro quo" harassment. This Latin term means "this for that." With quid pro quo harassment, the employee must put up with harassment to:

• get a promotion
• keep a job
• avoid discipline, or
• avoid other consequences.

This type of conduct might be familiar to you from sexual harassment cases, in which workplace rewards or keeping a job are explicitly linked to the victim's willingness to submit to unwanted sexual advances. But it can happen in disability harassment cases, too.

Disability Harassment and the Hostile Work Environment

There are three components to a hostile work environment:

• an employee is subjected to unwelcome conduct or comments
• that behavior is "severe and pervasive," and
• the behavior affects the terms and conditions of the job.

Below is a breakdown of what these terms mean and when such harassment becomes unlawful.

How Unwelcome Conduct Creates a Hostile Work Environment

For someone's actions or statements to be considered harassment, they must be unwelcome to you. This sometimes comes up in sexual harassment cases, where the harasser might argue that the employee "welcomed" sexual conduct by participating in it or appearing to find it amusing.

In a disability harassment case, this part of the definition is less likely to come into play. But there could be a question of welcomeness if you made jokes about your own disability (or medical condition). If you did, your coworkers might argue that they didn't know that you'd be upset if they joined in.

But cruel comments and actions are obviously unwelcome, so this isn't usually an issue in disability harassment cases.

What Is Severe and Pervasive Conduct?

A hostile work environment is typically created over time from a pattern of comments and incidents. A single statement or action, even one indicating prejudice, probably wouldn't be considered harassment unless it's very extreme, such as a physical assault.

There's no clear line about exactly how many offensive statements, jokes, or actions it takes to create unlawful disability harassment. Courts will look at all of the incidents in context. The more serious each incident is, the fewer it will take for the employer to be legally liable for harassment.

When Harassment Affects Your Job Status

To be illegal, the harassment must affect the terms and conditions of your employment (your job status). You'd meet this part of the definition if you were:

• fired
• disciplined
• transferred
• denied a promotion, or
• otherwise subjected to a negative job action.

If none of these things have happened, you can still meet this requirement just by showing that you find the workplace abusive or hostile because of the harassment, and that this reaction is reasonable under the circumstances. You'd likely meet this part of the test in any of the following situations:

• Your coworkers tease you about your disability so persistently that you dread going to work each day.
• Your supervisor embarrasses you in meetings by imitating your speech impairment.
• A regular client persistently asks intrusive and inappropriate questions about your use of a wheelchair.

(Learn about the times when your employer can and can't fire you because of your disability.)

What to Do If You're Facing Disability Harassment

If you believe you're being harassed at work because of your disability, you should start by filing a complaint within your company. Use the internal complaint procedures outlined in your employee handbook if you have one. Filing an internal complaint first accomplishes two important objectives:

• It gives your employer the chance to investigate and resolve the issue.
• It preserves your right to hold your employer responsible if the harassment continues.

Your employer must take prompt steps to end the harassment once it's aware of the problem. By filing a complaint with the company, you're making sure that your employer will be on the hook for any harassment that continues.

But your employer is legally liable—meaning the company can be held responsible—for harassment by supervisors that results in a negative job action against you (demotion, termination, and so on)—whether or not you've complained about it.

What If Your Employer Ignores Your Harassment Complaint?

If you aren't satisfied with your company's response to your complaint, or if the harassment doesn't stop, you should talk to an experienced employment discrimination lawyer. A lawyer can go over the facts with you and help you decide whether it makes sense to file a formal complaint against your employer.

If you decide to move forward, a lawyer can file a charge of discrimination against your employer with the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA, or your state's fair employment practices agency. These agencies can investigate the harassment, try to resolve the problem with your employer, and more.

You'll need to file a disability harassment charge with the EEOC or your state agency before you can take your employer to court.

Learn more about how lawyers are paid in disability discrimination cases.

_{Updated March 9, 2023}