Mocking Comments of Tourette’s Syndrome May Cost Costco

A federal appeals court in New York has shed light on when simple teasing crosses the line and gives rise to a “hostile” work environment under the law.

A three judge panel for the U.S. District Court of Appeals for the Second Circuit this week overturned the dismissal of a hostile workplace claim filed by a veteran Costco employee with Tourette’s Syndrome and Obsessive-Compulsive Disorder.

It was a case of first impression for the 2nd Circuit, which joined several other federal circuits in finding that hostile work environment claims are cognizable under the Americans with Disability Act (ADA).

The plaintiff,  Christopher Fox, a 21-year veteran employee at a Costco store in Holbrook, NY, said he began experiencing higher levels of stress after a management change in 2013. He was reprimanded for making inappropriate comments to two female customers and reassigned from a Greeter position to an Assistant Cashier position, where he had less contact with patrons.

In his new position, Fox said, Costco employees began mocking him and made “hut-hut-hike” remarks to mimic Fox’s strategy for avoiding verbal and physical tics. He claimed the abuse was audible to managers, who did nothing.

Fox’s verbal and physical tics mocked with reference to football play

Fox complained to Costco Chief Executive Officer Craig Jelinek after Fox was denied two work breaks to deal with his disability. Jelinek ordered an investigation and Fox’s supervisor was transferred.

Despite this, Fox said Costco employees continued to treat him poorly because of his disability until he had a panic attack and left Costco in November 2014.

The appeals court panel said Fox produced sufficient evidence to raise a legal question as to whether  the harassment he suffered was “sufficiently severe or pervasive” to create an objectively hostile or abusive work environment.

The panel said workplace harassment can be shown if:

  • A single isolated incident was extraordinarily severe and altered the terms and conditions of the plaintiff’s employment, or;
  • A series of incidents were sufficiently continuous and concerted to alter the plaintiff’s working environment.

The panel said the continuous mocking “hut-hut-hike” comments by co-workers raised a “material issue of fact as to whether Costco employees engaged in ongoing and pervasive discriminatory conduct.” Moreover, the panel said Fox’s supervisors witnessed the conduct but did nothing, demonstrating a specific basis for imputing the objectionable conduct to Costco.

“Since the phrase ‘hut-hut-hike’ is borrowed from football, and Fox alleges that he often touched the floor when he suffered verbal tics, presumably resembling a three-point stance, we can fairly infer the phrase ‘hut-hut-hike’ was mockery of his disability as opposed to, for example, discussing last night’s game or motivating each other to get going,” the panel said.

The panel said teasing in the workplace, even with respect to a disability, “is not uncommon, and in most instances probably not actionable.”  The panel said even hurtful comments mimicking a worker’s stutter , height or weight may not give rise to an employer’s liability.

“Here, however, viewing the evidence in the light most favorable to Fox, Fox  raised an issue of fact as to whether the frequency and severity of the mockery rise to the level of an objectively hostile work environment,” the panel concluded.

The case is Fox v. Costco Wholesale Corp., No. 17-0936 (2nd Cir. 2019). The second district includes Connecticut, New York and Vermont.

 

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