Costco Cleared on Discrimination Claims of Worker With Tourette’s

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By Kevin McGowan

Costco Wholesale Corp. won’t have to stand trial on the disability bias and retaliation claims of a longtime employee who has Tourette syndrome and obsessive compulsive disorder ( Fox v. Costco Wholesale Corp. , 2017 BL 68220, E.D.N.Y., No. 15-439, 3/6/17 ).

Christopher Fox, a greeter and assistant cashier at a Costco warehouse in Holbrook, N.Y., said co-workers harassed him because of his disabilities and that he was retaliated against for sending an email to Costco’s chief executive officer complaining about the behavior.

But the alleged derogatory comments and behavior don’t rise to the level of “severe or pervasive” harassment that would violate the Americans with Disabilities Act, Judge Denis R. Hurley of the U.S. District Court for the Eastern District of New York said March 6.

Costco also didn’t retaliate against Fox after he contacted CEO Craig Jelinek, but rather investigated his complaints and apparently eased his concerns, the court said.

The Equal Employment Opportunity Commission in fiscal 2016 received a total of 28,073 charges alleging ADA violations, about 30 percent of all charges filed. The agency resolved 29,575 ADA cases, obtaining $131 million in monetary relief for bias claimants. Those numbers don’t distinguish between ADA claimants with physical impairments and those with mental health conditions.

To help address the issue, the agency recently outlined the ADA’s protections for workers with mental health conditions. It also issued a separate fact sheet outlining the role of mental health care providers who might be helping persons with disabilities to secure reasonable accommodations on the job.

Jonathan Tand, the Garden City, N.Y., lawyer who represented Fox in this case, said his client is considering an appeal but declined further comment March 8.

Attorneys representing Costco didn’t respond to Bloomberg BNA’s request for comment.

Tand & Associates represented Fox. Seyfarth Shaw LLP represented Costco.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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