Human Resources

When Workplace Harassment Is Not About Sex

Hey Compliance Warriors,

Sadly, there are a lot of cases in the workplace about Sexual  harassment this day and age. However, there are other cases where harassment is not considered sexual. Here’s an example….

Article via: lexology.com

“Harassment claims continue to dominate the legal news, but the Second Circuit recently reminded us that workplace harassment extends far beyond sex and gender.

The Circuit recently joined several sister circuits recognizing that a plaintiff can pursue a claim for harassment based on disability under the Americans with Disabilities Act (“ADA”), clearing up any doubt regarding the Circuit’s position on the matter. Fox v. Costco Wholesale Corp., No. 17-0936-cv (2nd Cir. March 6, 2019). The Circuit also made such claim easier to prove, finding that a plaintiff is not required to set forth the exact number of times actionable comments or conduct occur to demonstrate that the alleged harassment was “severe and pervasive.”


Plaintiff Christopher Fox alleged that he suffered from Tourette’s Syndrome and Obsessive-Compulsive Disorder (“OCD”), causing him to make involuntary comments and repetitive movements, also known as “tics.” Fox began working at Costco in the Holbrook, New York warehouse in 1996, initially as a store greeter.

According to the complaint, things were ok for Fox until 2013, when the Holbrook warehouse underwent a change in management, which Fox alleged sparked the beginning of the “harassment.”

Fox claimed a series of events occurred over a period of two years that exacerbated his Tourette’s and OCD side effects and caused him to work in a hostile work environment. First, Fox alleged that one of his new supervisors reprimanded him for carrying out various job-related tasks that non-disabled individuals also performed but were not reprimanded for. Second, in 2013, he was transferred to the position of assistant cashier after telling a Costco customer that she was “the love of his life” and making a comment to another customer about her beauty. Both customers complained to Costco management, and after an investigation concluded, Fox was transferred to another job, at the same pay and benefits. However, even in the new job Fox claimed that his new supervisor made inappropriate comments to him, such as “I cringe every time I walk by you.”

Finally, Fox then took a month-long medical leave and returned to the assistant cashier position, in which he claims he was subjected to discriminatory name-calling. Fox claimed his co-workers made comments such as “hut-hut-hike” and which were heard by managers. Fox claimed these comments persisted for months and management did nothing to address the alleged misconduct. Fox then emailed the CEO of Costco, explained his neurological conditions and claimed the atmosphere at the warehouse caused him stress. Notably, he did notraise the “hut-hut-hike” comments in his email.

Costco immediately investigated Fox’s claims. However, Fox alleged he continued to experience discrimination, by (1) being denied time sheets which were needed to complete his job, (2) being reprimanded for leaving his work station to drink water, as well as refusing to leave his work station, (3) being subjected to complaints by cashiers that their ring times went downhill when Fox helped them, (4) being denied work breaks, and (5) being told by a coworker “You had no problem screaming earlier.” In November 2014, Fox had a panic attack and went on indefinite medical leave. Following his anxiety attack, Fox never returned to work and brought his lawsuit.


Fox’s action against Costco alleged hostile work environment, disparate treatment, failure to accommodate, and retaliation under the ADA and New York State Human Rights Law. Judge Hurley of the Eastern District of New York granted summary judgment on all claims in favor of Costco, including the hostile work environment claim, finding that Fox failed to prove he had the alleged conduct was “severe and pervasive” enough to support a claim. The District Court also ruled that the conduct and comments at issue were not objectively hostile and abusive. Specifically, the District Court found that Fox failed to provide any details regarding the persistence of the “hut-hut-hike” comments, such as how many times the comments were made per shift, week and/or month.


On appeal, the Second Circuit, for the first time, explicitly held that plaintiffs can assert hostile work environment claims under the ADA. In reaching this decision, the Court noted that it was persuaded by the 10th, 8th, 5th, and 4th Circuits which have held similarly, as well as Congressional intent in enacting the ADA.

The Second Circuit also disagreed with the District Court’s analysis of the “severe and pervasive” standard, finding that Fox was not required to “list the shift, week, or month” of the discriminatory comments in order to defeat summary judgment. The Court instead found that such a standard demanded too much from Fox. He was only required to show that the conduct he complained about was “objectively abusive” and that abusive conduct could be imputed to Costco. The Court found that a reasonable fact finder could determine that the “hut-hut-hike” comments that were made to Fox over several months were potentially “severe and pervasive” enough to change his working conditions, and thus summary judgment in favor of Costco was not warranted. Moreover, the Court found it obvious that the comments were aimed at making fun of Fox’s disability and his tics, and the alleged abusive conduct was imputed to Costco because Fox had pointed to evidence showing that supervisors and managers knew about the discriminatory comments but did nothing about it.


This decision first confirms something which we have been teaching our clients for years: harassment extends beyond gender and the law recognizes that a person who has been harassed based on any protected category potentially has a claim, under federal, state and local laws. That is the first lesson of Fox.

Second, and going beyond disability, the decision eases the burden of proof for a plaintiff alleging harassment, so that an ambiguous allegation of “joking” or “teasing” about one’s protected status, even when not backed up by specifics, may be enough to get past summary judgment.

  • Does the Fox opinion mean that employees may never joke around in the workplace? No.
  • Does the decision remind us that employees (and managers) cannot “joke” about someone’s disability? Yes.

The Second Circuit explained that teasing in the workplace is not uncommon and many comments that include jokes about one’s appearance can be hurtful, but not actionable. However, the Second Circuit’s holding advises employers to take remedial action when jokes, comments or conduct concern protected characteristics, even if a single comment or isolated incident is at issue.


  • Hostile work environment claims are not limited to sex and gender; they may arise under the ADA as well. Clearly, “teasing” or “joking” about a disability (or any protected category) at work is simply not acceptable.
  • One comment or a single incident might be severe enough to form the basis of a hostile work environment claim. That is especially true when the comments are directly related to a disability, or to some other protected characteristic (age, ethnicity, race, etc).
  • Every employer must be especially vigilant to make sure that managers do not participate in or even observe “joking” or “remarks” that could be hurtful or are based on a protected characteristic.
  • Managers cannot be bystanders and must be trained to respond and report. Management must be on the lookout for any comments, jokes, mockery or conduct by employees that are “nasty,” abusive or potentially harmful, and report those to HR. Do not ignore the issue.
    • A manager who is a bystander creates potential liability for the company.”

For more information: https://www.lexology.com/library/detail.aspx?g=704e0527-fdff-4223-ab88-5a0911955d70&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-03-28&utm_term=


Lisa Smith is CEO of Andere Corporation and Chief Content Developer at HelpDeskSuites.com. Follow her on Twitter, connect with her on LinkedIn, listen to her Small Business Spoonfuls Podcast, and find more in her Compliance Warriors Facebook Group.

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