Published March, 2001

Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229 (5th Cir. 2001)

This opinion affirms a holding for an employee living with HIV who brought a hostile work environment claim under the Americans with Disabilities Act (ADA). While the question of whether the ADA allows a hostile work environment claim has not been resolved by the Supreme Court, the Fifth Circuit joined the growing consensus among circuits—which now includes the Third, Fourth, Sixth, Seventh, Eighth, and Tenth Circuits—that the ADA allows such claims. The parties in the case did not dispute that the plaintiff was disabled under the statute, but the defendants argued that the evidence did not demonstrate harassment of a severe and pervasive nature. The court disagreed, relying on the following facts: after disclosure of the plaintiff’s HIV-status (1) the plaintiff's employers became cold and distant toward the plaintiff; (2) the plaintiff was required to take an unprecedented number of drug tests; (3) the plaintiff was written up and disciplined an unprecedented number of times and brought into meetings under false pretenses, in which she was verbally abused; (4) her manager demanded that she stop recording their conversation and physically took her tape recorder from her.

The court held that there was no evidence of injury such that the plaintiff could recover more than nominal damages. However, the court stated that its holding was specific to the plaintiff’s inability to demonstrate that she had suffered any injury. In doing so, it maintained that damages could be appropriate in a similar case, stating “daily harassment towards an HIV-positive individual such as [the plaintiff] may not only affect that individual emotionally, but may also cause a decline in the health of that individual, resulting in particularized physical consequence.”