Harassment of disabled employees is a serious workplace issue that's all too common. Learn about your rights as a disabled worker and what you can do if you’re the victim of disability harassment.
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Despite significant advances in making work environments accessible and welcoming to people with disabilities, many employees with disabilities unfortunately still experience harassment at work due to being disabled. Disability harassment can take many forms, such as name calling, cruel jokes, and mean comments, or more extreme behavior like tampering with an employee’s equipment or physical intimidation.
If you’re being subject to pervasive and unwelcome actions, comments, or conduct at work about your disabling condition, you should understand your rights under the Americans with Disabilities Act (ADA). ADA enforcement mechanisms for illegal harassment can include monetary damages, so it’s worth it to take some time and learn what your options are.
When Is It Illegal to Harass a Disabled Person at Work?
The federal ADA employment antidiscrimination provisions apply 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.) Harassment is a form of disability discrimination, and the ADA extends legal protections even to people who are “perceived” as having a disability. Anyone in the workplace can be guilty of disability harassment, including coworkers, supervisors (including other supervisors than your own), and third parties such as clients or vendors.
Disability harassment falls into two categories—you have to put up with unwelcome conduct as a condition of keeping your job (sometimes called “quid pro quo”); or the harassment creates an employment atmosphere that affects your ability to do your job (a “hostile work environment”).
What’s an Example of Quid Pro Quo Disability Harassment?
“Quid pro quo” means “this for that” in Latin. It occurs when you, as an employee, have to put up with harassment in order to get a promotion, keep a job, or avoid discipline. 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.
For example, if your boss regularly makes demeaning comments and implies that receiving a raise is contingent on your ability to ignore the comments, that’s quid pro quo harassment. Another example would be if you report disability harassment by coworkers, and your supervisor responds with something like, "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.”
What’s an Example of a Hostile Work Environment for Disability Harassment?
Hostile work environments exist when an employee is subjected to unwelcome conduct or comments that are so “severe or pervasive” that they affect the way the employee does their job. Some examples may include your coworkers teasing you about your disability so extensively that you dread going to work each day, your supervisor embarrassing you in meetings by imitating your speech impairment, or a regular client persistently asking intrusive and inappropriate questions about your use of a wheelchair.
What’s Unwelcome Conduct?
For someone’s actions or statements to be considered harassment, they must be unwelcome to you, meaning you didn’t solicit or start it. (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. Cruel comments and actions are obviously unwelcome, so this isn’t usually an issue in disability harassment cases.
When is the Unwelcome Conduct “Severe or Pervasive”?
Stray comments, mild teasing, or even an occasional joke about an employee's disability aren’t necessarily illegal. But if the conduct is so “severe or pervasive” that it creates a work environment that a reasonable person would consider “intimidating, hostile, or abusive,” you may have recourse under the ADA. (See United States EEOC v. Rite Aid Corp, 750 F. Supp. 2d 564 (2010).)
Hostile work environments are 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 Does Harassment Affect Your Job Status?
To be illegal, the harassment must affect the terms and conditions of your employment (your job status). This includes being 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. (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 potentially resolve) the issue, and 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 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.
It’s important that you document instances of disability harassment or retaliation. One way is to maintain a journal in which you record the date, time, and location of the incident; the names of everybody involved; the context in which the incident occurred; your response to the incident; and any verbatim quotes or close paraphrases, if you can remember. Having a “paper trail” (including electronic communications such as text messages, email, or chat logs is key to establishing a pattern of harassment.
When Should I Hire a Lawyer?
If you aren't satisfied with your company's response to your complaint, the harassment doesn't stop, or you’ve experienced retaliatory action as a result, 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. For additional information, check out our article on when to get a disability discrimination attorney.
