Disability Harassment: When is it a Crime

Published on January 2nd, 2018

Harassment based on a disability is prohibited by the Americans with Disabilities Act (ADA) in the workplace. Harassment can be anything that a supervisor, coworker, client or vendor directs at a disabled person that is unwelcome and is because of the person’s disability.

Disability Harassment

Some of the types of actions that are considered harassment are physical intimidation, name calling, crude or cruel comments, tampering with a person’s personal belongings or inappropriate jokes at the person’s expense. Other actions can be considered harassment as well, depending on the impact they have on the individual that they are directed at.

When is Disability Harassment Illegal

Some jokes, teasing and comments about someone’s disability may not cross the line into law breaking, as several factors must also come into play. For the law to get involved the harassment must create a “hostile work environment” or be something the individual is required to suffer in order to maintain employment.

A hostile work environment is a work space where the conduct of others is severe enough that a reasonable person would think the bad conduct is hostile, intimidating or abusive. Along with that, the conduct must be fairly long lasting, or pervasive, and make it difficult or impossible for the target of the harassment to complete their work.

For a position that requires a person to suffer some indignity or insult to maintain employment the situation is often considered “quid pro quo” harassment. Usually this is most common with sexual harassment cases, where a sexual favor must be given in return for the job, but there are situations where an employer or supervisor could make unfair demands of someone with a disability for them to keep their job.

What to do if Disability Harassment is Occuring

In the case of any harassment the first step should be using the employer’s reporting system for making a complaint. This allows for the employer to resolve the issue before it becomes a larger problem, and it creates a history showing when the harassment began as well as how severe the conduct is. Filing a complaint within the company, according to their policies, also protects further legal actions that may be necessary if the employer fails to resolve the issue.

If the conduct continues after a complaint has been made, or if the employer mishandles the response to the complaint, then it may be necessary to take legal action. Contacting an experienced lawyer will allow for them to file charges which will result in the EEOC or state fair employment agency beginning an investigation.

The investigation will be looking to see that the conduct was proven to be unwelcome, severe and pervasive, and violated the terms of employment. Sometimes the harasser may have felt the conduct was welcome, especially if the disabled person was to make jokes about their condition themselves, or seemed to participate in the actions willfully. It’s important to make sure that such actions were not welcomed and that they were asked to stop the harassment from recurring.

Along with showing that the conduct was unwelcome, it must be severe enough and long lasting enough to determine how much it affected the person being harassed. The more threatening or harmful the conduct was then it will mean less incidents are needed to show the employer was liable for allowing it to occur. Otherwise a clear pattern of harassment must be shown for legal liability to be proven.

Lastly, the terms of employment must have been affected for the actions to be illegal as well. Any sign of negative job actions generally meet this requirement, such as any demotions, terminations, denial of promotion, transfer or other disciplinary actions. If none of those have occurred then showing the workplace has been hostile or abusive can satisfy the requirement. Things such as bullying or embarrassment caused by coworkers or bosses that cause the employee to loathe going to work, having regular clients that ask invasive and demeaning questions based on the disability may qualify for this portion of the legal test.

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