Harassment of applicants and/or employees with disabilities is taken seriously by the EEOC. It’s also illegal under the ADA. Harassment can include, for example, offensive remarks about a person's disability. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Butterball, LLC, a Garner, N.C.-based turkey processing company found out the hard way, when it subjected an employee to a hostile work environment based on the fact that she has HIV and firing her because of that disability. Specifically, three co-workers expressed to her on a daily basis that they did not want to touch her or work with her because she is HIV-positive. The three employees also referred to their coworker using derogatory names to describe her HIV status. Furthermore, the employee complained to her supervisor about the harassment on a daily or near-daily basis, but the harassment persisted. Butterball’s plant manager was also aware of the harassment after conducting a meeting with the employee and one of her co-workers to address an altercation that the co-worker provoked. However, the next day, the plant manager fired the HIV-positive employee.
Employees have the right to work in an environment free from harassment, and Title VII prohibits both harassment and firing an employee because of a disability. According to the EEOC, “Harassment that targets a person with an ADA-covered disability, is just as much a violation of federal law as harassment based on a person’s race, color, gender, age, religion, or national origin...HIV/AIDS has always been a sensitive health issue, and an employer has no excuse for failing to intervene when an employee complains of vicious harassment based on her HIV status.”
Note: President Obama has charged federal agencies to implement the National HIV/AIDS Strategy, which includes addressing and preventing employment-related discrimination against people living with HIV. This case serves as an example of how the EEOC will strongly enforce federal laws to ensure that qualified people are not wrongfully deprived of an opportunity to earn a living simply because of their HIV status.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.