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Bound by our commitment to you, here is Part V of our series on “Disability Employment Discrimination Defense Checklist for ADA Claims,” through which we aim to provide you with a hands-on guide on the checklist of issues that you or your defense counsel may consider when defending against a disability discrimination claim brought forth under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.). As we promised in Part IV, we have hammered on the checklist of issues to consider when defending against harassment claims brought forth under the ADA in this blog, which is Part V of the series.

For starters, it is crucial to understand that as an employer, you may be held liable under the ADA if it is established that your employee underwent unlawful harassment while at work because the employee has a certain disability. Accordingly, to defend against harassment claims brought forth under the ADA, the employer should consider whether the employee has demonstrated harassment and utilize several defenses as discussed below.

Demonstration of harassment by the employee – as the employer, you or your defense should evaluate whether all the elements of a harassment claim are satisfied by the employee. Under the ADA, an employee must demonstrate the following to establish a harassment claim:

  • The unwelcome conduct was based on the employee’s disability.
  • The unwelcome conduct was pervasive or severe.
  • The unwelcome conduct affected a privilege, condition, or term of employment.
  • The disabled employee was subject to unwelcome conduct (objectively and subjectively unwelcome).

Key Defenses for ADA Harassment Claims

Next the employee should evaluate several key defenses applicable to harassment claims under the ADA.

Contest that disability was not the basis of the alleged harassment – since the ADA is not a “general civility code,” the employee should evaluate and contest that an employee’s disability was not the reason for the alleged harassment. Only harassment related to protected characteristics is actionable.

Contest any continuing violations claims – through the continuing violation doctrine, employers are allowed to assert claims for harassment conduct that took place when the pre-limitations period conduct was a continuous part of a violation, which took place following the start of the limitations period. Accordingly, the continuing violation doctrine can be defeated when:

  • The employee cannot establish that the employer’s actions before and after the limitations period are a part of the “same actionable hostile work environment practice.”
  • A continuing hostile work environment is interrupted by an employer’s “intervening action,” such as disciplining the alleged harasser.
  • The gap of the period of time between the timely filed actionable harassment claim and the untimely actionable harassment claim(s) is too long.

Contest that the employee was unable to provide adequate disability harassment notice – If an employee’s complaints did not put the employer on notice that the harassment was based on a protected characteristic, such as a disability, then employers are not liable for harassing conduct under the ADA. Therefore, the employer should evaluate whether they were notified of the alleged disability harassment.

If applicable, assert the Faragher-Ellerth defense – Although it has been applied to defend against hostile work environment harassment claims based on other protected classes, the Faragher-Ellerth defense is essentially utilized when defending against claims of hostile work environment sexual harassment. Accordingly, assert this affirmative defense, the employer must demonstrate that:

  • The employee unreasonably failed to take advantage of corrective or preventative opportunities provided by the employer – or
  • The employer exercised reasonable care to prevent and promptly correct any harassment.

Contest that the alleged harassment was not subjectively and objectively hostile – since the ADA requires an employee to satisfy both the objectively and subjectively hostility criteria, determine the objectively and subjectively hostility of the work environment.

Contest that the alleged harassment was neither “pervasive nor severe” – next, the employer should evaluate the severity or pervasiveness of the harassment since it must meet such a standard to be actionable. Consequently, courts analyze whether the conduct interfered with an employee’s work performance, whether it was threatening or humiliating, and the severity and frequency of the conduct to meet this standard.

Evaluate whether the alleged conduct was committed by a third party – under the ADA, if and only if the employer should have known or knew about the harassment and failed to take corrective action, then an employee can bring forth claims against an employer for the conduct of a third party (such as client, independent contractors, or customers). Thus, employers must show that (1) they had no reason to know about the harassment, (2) had not known about it initially, and (3) took prompt action as soon as they learned of the alleged conduct, in order to avoid liability for the harassment of its employees by third parties.

Assert that the alleged harasser was not a supervisor – under the ADA, it is only if the employer was “negligent in failing to prevent harassment from taking place” that such an employer is liable for non-supervisor harassment. Thus, employer should evaluate whether the alleged harasser was a supervisor.

In Part VI of this series, we will move forward the discussion by looking at the checklist of issues to consider when defending against retaliation claims under the ADA.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.