Hostile work environment claims are cognizable under the Americans with Disability Act, the U.S. Court of Appeals for the Second Circuit found for the first time in an opinion vacating and remanding in part a dismissed ADA claim by a Costco employee.

The panel—composed of Circuit Judges Dennis Jacobs, Peter Hall and Christopher Droney—upheld most of the claims that had been dismissed by U.S. District Judge Denis Hurley of the Eastern District of New York on summary judgment. But the panel said the hostile work environment claims made by the appellant, Christopher Fox, deserved to be heard based on adequate evidence in the record.

“This circuit has previously assumed, without deciding, that hostile work environment claims are cognizable under the ADA,” the panel wrote. “We now join our sister circuits and hold that hostile work environment claims are cognizable under the ADA.”

Fox has dealt with both Tourette syndrome and obsessive‐compulsive disorder, which are recognized as disabilities under the ADA. He's been a Costco employee since 1996, when he started in the Holbrook warehouse.

According to court filings, the issues covered by his lawsuit began with a change in management in 2013 at the Holbrook Costco, where Fox was then working as a greeter.

Fox was reprimanded by members of management for relatively small infractions, and had customers complain about comments he was said to have made toward them. He was suspended over the complaints, and moved to a cashier position.

Between this position change and a panic attack that in November 2014 left him on indefinite medical leave, Fox claims he was harassed by co-workers who mocked and treated him poorly because of his disabilities. The situation was enough for him to email Costco CEO Craig Jelinek directly to complain about the situation, which, while resulting in an investigation and personnel changes at the store, Fox claims didn't help his poor treatment.

On appeal, the panel found the district court was right to dismiss most of Fox's claims. The panel said there was not enough evidence to sustain his disparate treatment, retaliation and failure to accommodate claims under the ADA.

However, on Fox's hostile work environment claim, the panel said it was joining its sister circuits to recognize such claims as cognizable under the ADA. The panel said it was persuaded by the ADA's echoing of Civil Rights Act language that had been upheld regarding hostile work environment claims under Title VII by the U.S. Supreme Court.

“By borrowing Title VII's language, Congress suggested that it intended for the ADA to be coextensive, at least in this respect, with Title VII. This view is bolstered by the shared purpose of Title VII and the ADA to prevent discrimination against a defined class of people,” the panel wrote.

As the panel noted, the parties did not dispute that Fox's on-the-job treatment was bad, only whether Costco could be held accountable for it. While legitimate discipline taken against Fox failed to support his hostile work claim, allegations that co-workers spent months mocking his disabilities in the presence of managers was a different story.

The district court “demanded too much” when it dismissed his claims because he wasn't able to provide granular details about how often and when comments were made, the panel said. Given the above, Fox met his burden to defeat Costco's summary judgment motion.

The panel closed by noting that teasing in the workplace is common, and potentially harmful. Mockery of “overt features” like height, weight, stuttering or acne might not necessarily support damages, and Fox's claims of mockery regarding his disabilities “does not bear on whether the workplace environment was objectively abusive,” the panel stated. The issue is the frequency and severity, which the district court would now need to review.

Fox was represented on appeal by Raiser & Kenniff partner Jonathan Tand, who said he and his client were pleased with the outcome.

“My client is relieved that he will get his day in court as this has been a long and difficult journey for him,” Tand said in a statement.

Seyfarth Shaw partner Lorie Almon led the firm's work for Costco. She did not respond to a request for comment.