How to Contest and Prove Disability Harassment in the Workplace

The Americans With Disabilities Act is a federal statutory scheme that prohibits, in part, workplace discrimination on the basis of disability. It is less widely known that federal law also prohibits disability-based harassment that creates a hostile work environment. Under this doctrine, when a disabled worker is constantly subjected to pervasive and severe harassment due to his disability, compensatory damages and punitive damages can be sought against the employer. The disabled worker must first, however, provide notice to appropriate supervisory personnel to afford the employer due opportunity to remedy the offensive environment. The following steps can be used to satisfy the notice requirement and to pursue remedies in the event of continued harassment.

Difficulty: Moderately Challenging

Instructions

Things You'll Need:

• Diary or notebook with record of illustrative comments and misconduct evidencing disability-based harassment
• Names of offenders and witnesses to harassment
• Proof of employer notification

1. Review the employee handbook for procedures to follow when harassment is perceived to have occurred. Alternatively, consult posted employee rights notices for notification instructions.

2. Report the harassment to the manager or other supervisory-level person designated by the company’s no harassment policy. If no such policy exists, report the harassment to the department supervisor or head of human resources.

3. Record in a notebook, diary or journal any comments said or pranks committed in your presence that reflect a negative or hostile view of your disability. Record the date, time, place, speaker and names of witnesses to the statements.

4. Record incidents where supervisors or co-workers subjected you to embarrassment by, for instance, calling unnecessary attention to your physical limitations.

5. Retain copies of emails, bulletin board postings and other documents that evidence hostility toward your disability or disabled workers in general.

6. Assuming the harassment continues after your report, file a Charge of Discrimination with your local district office of the Equal Employment Opportunity Commission.

Tips & Warnings

• It is typically difficult to obtain supportive testimony from fellow employee witnesses because they fear the employer will punish them for assisting. Note that federal law prohibits an employer from retaliating against an employee for testifying in an employment discrimination action, and make this protection known to potential employee witnesses.
• If your supervisor is one of the offenders, take your complaint to another management-level employee. Tell her that you are uncomfortable confronting the supervisor about the harassment because of his involvement in it.
• Federal law prohibits an employer from retaliating against an employee for complaining of unlawful discrimination or harassment. If adverse employment action is taken against you as a result of your complaint, report this to the Equal Employment Opportunity Commission and file a separate Charge of Discrimination for unlawful retaliation.
• Avoid asking or suggesting that other employees be terminated. Otherwise, you could be sued for interfering with the employee’s employment relationship.