Today’s blog entry is a triple play. In the first, we will go over an advice column and discuss what they got wrong and what they got right. In the second and third situation, we will briefly discuss two cases that came down from the Second Circuit recently: dealing with hostile environment under the ADA claims; and dealing with essential functions of the job. As usual, the blog entry is divided into categories and they are: the advice column; the hostile work environment case/takeaways; and the pharmacist who is afraid of needles case/takeaways. The blog entry is pretty short, and so, you probably will want to read the whole thing, but you certainly don’t have to.


In an Ask Sam column, which can be found here, a reader asked the question whether as the owner of a rental property, just what were the rules for service dogs on the premises since obviously not all requests were coming in for service dogs.

  1. The column gets it right that landlords may not discriminate against a tenant with disability regarding the leasing of a property because the person with a disability has a service animal. I am presuming the column is talking about a residential unit and not a place of business.
  2. The column also gets it right that North Carolina has a system for registering service animals.
  3. The column gets it right that a landlord cannot assess a pet fee for a service animal, and that the tenant is responsible for any damage to the leased premises caused by the service animal.
  4. The column more or less gets it right when it talks about what is the definition of a service animal. For that, see this blog entry. It does get it right with respect to examples of what might be a service animal.
  5. The column gets it wrong in saying that registration with North Carolina is necessary in order to have permission for a service animal to be in the unit. Federal law, in this case the Fair Housing Act, trumps state law and federal law contains no such requirement.
  6. The column gets it wrong in a big way when it says that comfort animals, which presumably includes emotional support animals, do not qualify as a service animal under either the ADA or the North Carolina statute, AND therefore, in those situations the landlord can enforce a no pet policy. The first part of this sentence is correct but since it is dependent upon the second part of the sentence, the whole thing fails. As we know from our blog entries, the Fair Housing Act, which is the law that applies to residential unit being leased, specifically allows for emotional support animals as an assistance animal. Failure to get this right can cost you big time, as we discussed here.


Hostile Work Environment Case and Takeaways

Two labor and employment bloggers do a real nice job discussing the hostile work environment case. Those blogs are Bergstein and Ullrich’s Wait a Second blog (Wait a Second also blogged on the scared of needles case as well), in my blog roll and which can be found here, and Fisher and Broyles Employment Law blog, here. As everyone knows, if other people blog on the case, I may blog on it as well if I can add a perspective to it, and so, here goes.

In Fox v. Costco Wholesale Corporation, the Second Circuit was faced with the question of deciding whether a hostile work environment claim flies (it does and questions of fact existed to defeat summary judgment), with respect to the ADA. The Second Circuit reasoned as follows:

  1. The 4th, 5th, 8th, and 10th Circuits have all held that the ADA supports a hostile work environment claim.
  2. Under the ADA, a covered employer shall not discriminate against a qualified individual on the basis of disability in regard to terms, conditions, and privileges of employment. That language is borrowed from title VII, which has very similar language. Therefore, when Congress used that language, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment.
  3. When the ADA was enacted, the United States Supreme Court had already twice concluded that title VII provided for hostile work environment claims.
  4. Title VII and the ADA share a purpose to prevent discrimination against a defined class of people. Since the two statutes share a common purpose and the ADA echoes and expressly refers to title VII, it necessarily follows that people with disabilities should be able to assert hostile work environment claims in the same way people without disabilities can assert title VII claims.
  5. A person alleging a hostile work environment claim under the ADA must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of the working environment. That analysis is a totality of the circumstances test.
  6. Plenty of evidence existed to create a question of fact as to whether the plaintiff endured a hostile work environment.


  1. The plaintiff in this case had Tourette’s syndrome as well as obsessive-compulsive disorder since birth. The plaintiff did certain things in order to compensate for that disability, and fellow employees simply didn’t get it. Further, they mocked him for it.
  2. You don’t need an adverse employment action for a hostile work environment claim. Rather, you just have to show an alteration in the conditions of the working environment. They are not at all the same thing. Indeed, here the court finds that a hostile environment could well have existed even though no adverse action occurred.
  3. Perhaps, a Circuit Court split will develop on the issue of whether the ADA allows for a hostile work environment claim. However, I think it is just as likely that no such split will ever occur. Also, if it ever gets to the United States Supreme Court, I can’t imagine the Supreme Court – even with it being an employment case and even with this makeup of the court- saying no to such claims, but who knows.
  4. When it comes to hostile work environment and persons with disabilities, it will be very important for a plaintiff to be able to show the judge what was in the mind of the plaintiff as he or she had to endure all these things. It isn’t necessarily going to be obvious. Plaintiff may want to consider using expert testimony on that.
  5. When problems like this surface, don’t wait months to deal with it. Get on it immediately.


The Pharmacist Who Simply Can’t Give Shots

In Noel v. Walmart Stores, East LP, the Second Circuit was faced with the question of whether a motion to dismiss should be affirmed where a pharmacist who had a fear of needles would not give out shots to consumers wanting flu shot and other shots. The Second Circuit held that dismissing the case was not right and gave the following reasons:

  1. When Walmart announced that all pharmacy employees had to administer immunizations, plaintiff specifically sought an accommodation. Walmart in response sent the plaintiff a letter informing him that his request had been granted, that he was capable of performing the essential functions of the position, and that they were reasonably accommodating his disability. While the letter did note that the accommodation was subject to further review, including any changes in the job description, the job description was never altered at any time following receipt of the letter.
  2. When considering whether a job function is essential, the court noted the seven factor test laid out by the EEOC. However, the court notes that in these situations it is up to the court to conduct a fact specific inquiry into both the employer’s description of the job and to determine how the job is actually performed in practice.
  3. At the time of plaintiff’s constructive discharge, the job description had yet to change.
  4. The only way to arrive at the conclusion reached by the District Court dismissing the case was to discredit the plaintiff’s well pleaded allegations and discount Walmart’s own letter. That is not something that can be done on a motion to dismiss.


  1. Employers are under no obligation to waive essential functions of the job. However, employers do have to consider restructuring of the job, which we discussed here.
  2. Keep job descriptions current. That is, if you do change the essential functions of the job, make sure the job description changes with it.
  3. Regardless of what is in the job description, the critical question is what is occurring on the ground. So, figure out some way to periodically review job descriptions and compare them to what is actually happening.