Employees with disabilities are protected from discrimination and harassment at work by the Americans with Disabilities Act (ADA), a federal law that applies to employers with 15 or more employees. (Many states have their own laws that prohibit disability discrimination, and some of these laws apply to smaller employers.) The ADA prohibits workplace discrimination against employees with disabilities and requires employers to make reasonable accommodations to allow qualified employees with disabilities to do their jobs.
Like other laws prohibiting discrimination, the ADA also prohibits workplace harassment: unwelcome conduct based on an employee's physical or mental disability. Harassment might take the form of name-calling, cruel jokes, and mean comments, or it might escalate to threats and actions, from tampering with an employee's equipment or workspace to physically intimidating an employee with a disability. Below, we explain what disability harassment is and what to do if you are facing workplace harassment.
Harassment is a form of disability discrimination. It occurs when coworkers, a supervisor, or even third parties (such as clients or vendors) subject an employee to unwelcome actions, comments, or conduct because of the employee's disability.
Stray comments, mild teasing, or even an occasional joke about an employee's disability are not necessarily illegal. When does this type of behavior cross the line to become harassment? Illegal harassment occurs either when putting up with unwelcome conduct is a condition of keeping your job or the conduct so severe or pervasive that it creates a "hostile work environment."
The first type of harassment is sometimes called "quid pro quo" harassment. This Latin term means "this for that," as in the employee must put up with harassment in order to get a promotion, keep a job, avoid discipline, and so on. We are most familiar with this conduct from sexual harassment cases, in which a supervisor might insist that an employee go out on dates with him or put up with his advances in order to keep her job. But in can happen in other types of harassment cases, too. For example, an employee may have to put up with demeaning comments and abuse from her boss about her disability in order to keep her job, or a supervisor may tell an employee who reports disability harassment by coworkers, "I don't have room for complainers on my team; you'll need to figure out how to get along or find a company that fits you better."
In a hostile work environment situation, an employee is subjected to unwelcome conduct, comments, or actions that are so pervasive or serious that they affect the terms and conditions of the job. We break down this definition below.
The actions or statements must be unwelcome to you to constitute harassment. This sometimes comes up in sexual harassment cases, where the harasser may 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 far less likely to come into play. However, there may be a question of welcomeness if, for example, you make jokes about your own disability (or medical condition). In this situation, coworkers may argue that they didn't know you would mind if they joined in. Typically, however, cruel comments and actions are obviously unwelcome, so this is not usually an issue is disability harassment cases.
Hostile work environment harassment typically takes place over time, as a pattern of comments and incidents. A single statement or action, even one indicating prejudice, probably does not constitute harassment unless it's very extreme, such as a physical assault. There's no clear line about exactly how many offensive statements or actions it takes to create illegal 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.
To be illegal, harassment must affect the terms and conditions of your employment. If you were fired, disciplined, transferred, denied a promotion, or otherwise suffered a negative job action, this part of the definition is met. Otherwise, you must show that you reasonably find the workplace to be abusive or hostile because of the harassment. For example, if your coworkers tease you about your disability so persistently that you are loathe to go to work each day, or your supervisor embarrasses you in meetings by imitating your speech impairment, or a regular client persistently asks intrusive and inappropriate questions about your use of a wheelchair, you can likely meet this part of the test.
If you believe you are being harassed at work because of your disability, you should complain within your company, using the internal complaint procedures outlined in the employee handbook, if you have one. There are many reasons to file an internal complaint first. It informs your company about the problem, giving it a chance to investigate and resolve the issue. And, it will preserve your rights to hold your company responsible if the harassment continues.
Your employer must take prompt steps to end harassment, once it is aware of the problem. (The company is also legally liable for harassment by supervisors that results in a negative job action against you, whether or not you have complained.) By filing a complaint, you are making sure that your employer will be on the hook for any harassment that continues.
If you aren't satisfied with your company's response, or if the harassment doesn't stop, you should talk to an experienced employment lawyer. A lawyer can assess the facts and help you decide whether it makes sense to start formal proceedings against your employer. If you decide to move forward, a lawyer can file a charge of discrimination against your employer with the EEOC or your state's fair employment practices agency. These agencies can investigate, try to resolve the problem with your employer, and more. Filing a charge is also a required step before you can file a lawsuit for disability harassment.