A federal judge has just denied summary judgment to the Dickinson Independent School District in a case brought by a terminated grounds and utility employee who alleged a violation of the Americans with Disabilities Act of 1990 ("ADA") because he had a learning disability, which he characterized as “borderline mental retardation.” He also claimed disability-based workplace harassment under the ADA because he was called “Forrest Gump” by co-workers.

In defense, the School District contended, among other things, that the employee was not disabled, but the Court held that this was a material issue of fact after the employee adduced evidence that he “requires parental assistance to pay his bills, file for unemployment benefits, obtain health insurance and health care, complete job applications, monitor his bank account, buy groceries, and eat properly."  An affidavit he submitted by his mother also stated that he has “difficulty in understanding instructions, limited speech and vocabulary, participation in special education classes at DISD, and that his IQ score is 72.”

The key issue for our blog today is the employee’s claim of disability-based workplace harassment under the ADA, based upon his being referred to by co-workers as “Forrest Gump.” The judge held that to establish such a claim, the employee must demonstrate (1) that he belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment complained of was based on his disability; (4) that the harassment complained of affected a term, condition or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.

In this case, the employee “presented testimony that he not only endured discrete derogatory remarks, but that the harassment affected the form and nature of his work assignments,” although the employer claimed that these allegations were not “sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.”

The judge concluded, rather bitingly, that plaintiff provided sufficient evidence of harassment, stating that “the Court will consider [defendant’s] employees’ references to [plaintiff] as “Forrest Gump” to be due to Gump's ‘naïve and slow-witted’ nature (the Plaintiff's characterization), rather than to Gump's haircut (the Defendant's interpretation), All-American athletic career for the University of Alabama, ping-pong prowess, Congressional Medal of Honor, shrimping business, or cross-country running abilities (emphasis added).”

Employers should take away from this decision the fact that courts will look through and disregard strained or unreasonable interpretations of words which a reasonable person might justifiably understand as discriminatory code words. The more that code words become recognized over time for what they are and what they mean, the more obscure and disguised the code words uttered by employees will likely become, and employers should therefore be aware of what is said by their employees and what the words likely mean or are understood or intended to mean.