On 2/7/17, a district court in Massachusetts denied an employer’s motion for summary on hostile work environment and retaliation claims under the ADA, but upheld the employer’s motion for summary judgment on constructive discharge and failure to accommodate claims. The employee, who worked in a retail store, had a hysterectomy due to endometriosis and cancer. She also subsequently experienced a prolapsed bladder which required her to have to take frequent bathroom breaks. A male co-worker in the store repeatedly made crude, profane, and sexually suggestive comments related to her having had a hysterectomy. The on-site store managers were present when some of these comments were made and laughed at the comments. The employee asked them to stop and explained that the loss of her reproductive organs was not humorous. The employees told her that she “wasn’t as fun to be around” since her surgery. The case is Zemrock v. Yankee Candle Co. (D. Mass. 2/7/17).
Complaints to supervisors. The employee repeatedly complained to the on-site store managers about the offensive comments and asked them to speak with the co-worker. Nevertheless, the remarks continued. After more than one year of these comments, when a district manager was visiting the store, she told her that “couldn’t take any more” and she was “done with the company.” The district manager asked her to explain why, and she informed the district manager about the many comments that had been made. The district manager offered to attempt to resolve the issues and repeatedly asked the employee to stay but she declined because she feared that she would now be subject to retaliation for having reported the issues to the district manager. In that regard, the on-site supervisors had discouraged her from reporting the issues to anyone outside the store because they wanted the store’s problems to stay “in the store.” The employee subsequently quit.
Hostile Work Environment & the ADA. The court denied the employer’s motion for summary judgment on the hostile environment claim, noting that the First Circuit Court of Appeals had recognized that a hostile work environment claim could be asserted under the ADA. To prove such a claim, the employee must show that she was disabled, that she was subject to a hostile environment, and that the hostility was directed at her because of her disability. To prove hostile environment, the employee must show that the workplace was “permeated with discriminatory intimidation, ridicule and insult” that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. The court reasoned that the conduct must be both objectively offensive (i.e., offensive to a reasonable person) and subjectively offensive (i.e., this particular employee perceived the conduct/comments to be offensive). The court concluded that the employee “easily” met her burden of proving that under the circumstances that existed in this workplace, she, as a reasonable woman who had undergone a hysterectomy, would view the co-worker’s comments and her supervisors’ reactions to be sufficiently severe and humiliating to create an abusive work environment on the basis of disability.
The court commented that the supervisors’ repeated failure to effectively address the offensive comments supported the conclusion that a hostile work environment was created. The court noted: “A deaf ear from management may contribute to and encourage the hostility of the workplace, creating an impression that employees may engage in harassment or discrimination with impunity.”
Retaliation. The court also denied the employer’s motion for summary judgment on the ADA retaliation claim. The court concluded that the employee had presented sufficient evidence that the co-worker’s harassment had intensified after she complained to her supervisors about his conduct.
Constructive Discharge. The employee argued that the harassment was so severe that she was, in essence, subject to a constructive discharge, and had no choice but to resign her employment. The court rejected this argument, and granted summary judgment to the employer. The court noted that as a legal matter constructive discharge is “treatment so hostile or degrading that no reasonable employee would tolerate continuing in the position” and emphasized that it is “entirely objective” and that the employee’s own subjective beliefs – no matter how sincerely held – are not relevant. The court concluded that employee’s decision to resign was “grossly premature, as it was based entirely on her own worst-case-scenario assumption” that the employer would not correct the harassment in the store and would permit retribution by the store’s managers despite the employer’s policy against retaliation. The court emphasized that “fear of future retaliation” is not sufficient to support a claim of constructive discharge, and also noted that she declined an offer to resolve the issues.
Failure to accommodate. The court also granted the employer summary judgment on the employee’s claim that the employer had failed to reasonably accommodate her need to frequently use the bathroom. The court noted that the employer had agreed to accommodations. The employee contended that while the accommodations had been approved she believed that the on-site supervisors did not, in fact, support the accommodations because they involved closing the store when she was alone, and this would lead to a loss business. The court rejected this argument noting that the employee did not point to any evidence that her supervisors had prevented her from taking advantage of this accommodation.
Lessons for Employers? I hope that I do not have to caution employers that they should not tolerate the types of comments that were made here (which are so inappropriate and offensive that I will not repeat them). One take-away for employers is that if some employees work in isolated and remote locations, it would be wise to be vigilant about ensuring that employees in those locations feel comfortable bringing up concerns about inappropriate comments or conduct that may be occurring there. Employers should take some comfort from the court’s ruling on the constructive discharge claim. If you become aware of harassment that has been occurring, make sure that you take prompt action as it will help you defend any subsequent claim of constructive discharge if the employee decides to quit rather than permit you to address the problem.