Hut-Hut-Hike Leads To A Potential Touch Down For The Disabled

March 29, 2019

Lía Fiol-Matta, Esq. and Ty Hyderally, Esq.

On March 6, 2019, for the first time, the U.S. Court of Appeals for the Second Circuit, which has appellate jurisdiction over the federal district courts of Connecticut, Vermont and New York, decided that an employee with a disability, or who is perceived to have a disability, can assert a “hostile work environment” claim under the Americans with Disabilities Act, Pub. L. No. 101-336, 104 Stat. 328 (1990; “ADA”). The court considered an appeal from Christopher Fox, who has Tourette’s syndrome and obsessive-compulsive disorder, on the dismissal of a New York federal court of Fox’s claims of disability discrimination, hostile work environment, retaliation and failure to accommodate his disability under the ADA against his employer, Costco.

Fox started working for Costco in 1996. He alleged that after a new store manager was hired in 2013, Fox started receiving reprimands for performance and behavior issues such as leaving the store’s entrance unattended, calling a customer “beautiful” and calling another customer “the love of [his] life”. Fox admitted making the comments but attributed them to sometimes not being able to control what he said. His employer suspended him for three days and transferred him to a position where he would have less customer contact.

Fox claimed he could not control symptoms associated with his condition of Tourette’s. One uncontrollable behavior was that “he would often touch the floor before moving”. This allegedly caused Fox’s co-workers to mimic his physical tic by stating “hut-hut-hike” in his presence.  Clearly, this mimicking was aimed at making fun of Fox’s disability and analogizing his touching the floor as similar to a football player touching the ground. Fox also had a verbal tic of swearing, which he muted and masked by coughing, to prevent others from hearing him swear. Fox claimed Costco employees mocked his physical and verbal tics in the presence of managers for many months and, while Costco took some remedial action, Fox alleged the mistreatment continued. After having a panic attack at work, Fox was placed on an indefinite medical leave and he commenced a lawsuit in the U.S. District Court for the Eastern District of New York.

After the district court granted Costco’s motion for summary judgment dismissing Fox’s complaint in its entirety, Fox appealed the decision. In Fox v. Costco Wholesale Corp., No. 17-0936-cv (2^nd Cir. March 6, 2019), the Second Circuit affirmed the district court’s dismissal of Fox’s disability discrimination, retaliation, and failure to accommodate claims.  However, the Court held that Fox demonstrated sufficient material issues of fact concerning whether he was subject to a hostile work environment because of his disability. For the first time, the Second Circuit decided that a hostile work environment claim can be brought under the ADA, joining other circuit courts with similar rulings, namely, the 4^th, 5^th, 8^th and 10^th Circuit Courts.

The Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with enforcing federal antidiscrimination laws, defines a hostile work environment as one that is “intimidating, hostile, or offensive to reasonable people”. Such a hostile environment may be due to offensive jokes, name-calling, epithets, physical threats, ridicule or mockery, insults, interference with work performance and other situations that are more than mere annoyances or isolated non-serious incidents.

The court noted that “legitimate reprimands by an employer are not abuse”, such as when Fox was reprimanded for leaving the Costco entranceway unattended, leaving behind a cart, leaving his register to get water, and yelling. The court also found that disciplinary actions Costco took against Fox in response to customer complaints did not support his hostile work environment claims. The court did find, though, that a genuine issue of fact existed on whether Costco employees engaged in ongoing and pervasive discriminatory conduct in regard to the “hut-hut-hike” allegations, which Fox claims occurred in plain view of supervisors who took no action to stop the mockery of Fox’s disability. According to the decision, the frequency and severity of the mockery may have risen to the level of creating a hostile work environment and remanded the case for a jury to decide the matter.

Individuals interested in discussing possible violations of the ADA, including a claim for hostile work environment, and exploring their legal rights under this law are encouraged to consult an employment attorney.

This blog is for informational purposes only.  It does not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This blog may constitute attorney advertising.  This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state of jurisdiction.