By Kathleen Kapusta, J.D.
Dismissing without prejudice the ADA claim for associational discrimination by way of hostile work environment of an employee whose husband and coworker suffered from extreme gas and uncontrollable diarrhea after undergoing gastric bypass surgery, a federal district court in New Jersey found she failed to show conduct so severe or pervasive as to create an abusive working environment. Her claim of constructive discharge failed for the same reason, said the court in an unpublished opinion, granting her 14 days to cure her pleading deficiencies (Clem v. Case Pork Roll Co.
, July 18, 2016, Wolfson, F.).
Odors in the workplace.
Hired as the part-time administrative assistant to the comptroller, who was also her husband, the employee alleged that he was disabled pursuant to the ADA and state law as he weighed 420 pounds and suffered from morbid obesity and diabetes. Although he subsequently underwent gastric bypass surgery, he suffered complications such as extreme gas and uncontrollable diarrhea that were progressive and worsened. The company’s president and owner allegedly complained to her about his impaired digestive and bowel functions, telling her on multiple occasions that the office smelled because of his symptoms, that they were getting complaints from visitors, and that he needed to work from home "because of the complications associated with his surgery and disability."
The employee claimed that the executives continued to make the comments until her husband was terminated. On that same day, she "terminated her [own] employment because of the [alleged] harassment and discrimination" he faced. She then sued, asserting two claims of associational discrimination by way of hostile work environment and constructive discharge pursuant to the ADA and the New Jersey Law Against Discrimination.
While the Third Circuit has yet to expressly confirm that the ADA creates a cause of action for hostile work environment, it has noted in dicta that this cause of action exists, the lower court observed. Thus, said the court, it could assume this cause of action without confirming it, particularly because the employee failed to plead facts showing the existence of a HWE.
And while the court did not necessarily agree that the Third Circuit has limited the application of the ADA’s associational provision to only four situations—termination based on the belief the employee might miss work to care for a disabled employee; termination based on a disabled relative’s perceived health care costs to the company; termination based on fear of an employee contracting or spreading a relative’s disease; and termination because an employee is somewhat distracted by a relative’s disability—it found that this case did not fall within those four categories. Nor did the employee sufficiently allege that the executives’ comments were motivated by unfounded stereotypes or assumptions about her husband’s disability-related symptoms. Because she failed to sufficiently allege an adverse employment action by her employer, however, the court found it did not need to address whether the Third Circuit would recognize the associational discrimination cause of action under these circumstances.
Severe or pervasive conduct.
Finally, the court found that the employee failed to show that the alleged conduct altered the conditions of her employment as to create an abusive work environment. Although she alleged that the executives made "numerous comments," which occurred "frequently," "on multiple occasions," and "on a regular basis," they were ostensibly made by concerned employers regarding the health and physical condition of their employee and the unintended effect that the symptoms from his surgery and his disability had on the business, said the court. She did not allege the comments were physically threatening to her or were made so as to publicly humiliate her. More importantly, she did not allege that the comments interfered with her work performance in any way other than her conclusory allegation that the HWE "detrimentally affected [her] and would detrimentally affect a reasonable person in the same position." Accordingly, she failed to sufficiently allege an abusive working environment.
Because the court already determined that she did not allege sufficient facts to show that the conditions of her employment were altered and an abusive working environment created so as to support a HWE claim, she also failed to allege that she was constructively discharged. Accordingly, the court dismissed without prejudice her ADA claim.
Turning to her associational discrimination claim under the NJLAD, the court explained that it would decline to exercise supplemental jurisdiction over it if her amendment, if any, to her ADA claim ultimately proved futile.