As a management-side employment law attorney, I spend much of my time advising employers on how to comply with the ADA’s disability accommodations requirements, no easy task, often using examples of what they should avoid. Thank you, Elon Musk, for providing a stark example this week with tweets that were publicly dismissive of Haraldur Thorleifsson, a disabled Twitter worker. Musk’s twitter exchange with Thorleifsson was just the latest “Elonian” employment law kerfuffle since taking over at Twitter in 2022, and we’ll discuss the lessons to be learned from it here. Stay tuned for more Musk “what not to do” lessons to follow.
The current Musk dust-up began when Thorleifsson sent a tweet to Musk looking to clarify whether he had been included in a group of about 200 Twitter employees who were laid off by the company at the end of February 2023. Thorleifsson, who had been a Twitter product designer for about two years, claimed that Twitter had cut access to his work computer nine days prior and its HR director had not been able to confirm whether or not he was still an employee of the company.
Musk responded, “What work have you been doing?” Thorleifsson followed with a description of his Twitter work projects, which he claimed were “[a]ll active design projects,” to which Musk tweeted back laughter emojis. Thorleifsson subsequently was informed by Twitter HR that he had in fact been laid off.
Things got uglier from there. Thorleifsson, now 45, suffers from muscular dystrophy, a degenerative disease that he said has caused his body to fail him to the point where he needs help to get in and out of bed and use the toilet, adding that he had been using a wheelchair for the last 20 years. Musk’s response to another Twitter comment about Thorleifsson was jarring and unsympathetic:
The reality is that this guy (who is independently wealthy) did no actual work, claimed as his excuse that he had a disability that prevented him from typing, yet was simultaneously tweeting up a storm.
Can’t say I have a lot of respect for that.[1]
In addition to generating a storm of public criticism, Musk’s lack of sensitivity and public denigration of an employee with a disability presents a clear teaching moment for employers of “what not to do.” The lesson for employers to take away from Musk’s tweets is to be really careful: Negative employer comments about an employee’s disability, or other protected characteristics, can result in a claim of employment discrimination or hostile work environment under the ADA and its state law equivalents, brought by the employee on the receiving end of those comments.
The ADA prohibits employment discrimination against any individual with a disability because of that individual’s disability. Disability discrimination in violation of the ADA comes in two forms: disparate treatment and hostile work environment. Disparate treatment refers to intentional discrimination, where people with a disability deliberately receive worse treatment than individuals without a disability, in the terms and conditions of employment such as in lay off and termination decisions. Comments of any kind, but especially disparaging comments about an employee’s disability or other protected characteristics are often seen by the courts as direct evidence of discriminatory bias.
The ADA also prohibits disability-motivated hostile work environments. This is harassment directed toward an employee based on the employee’s disability or other protected characteristic that is sufficiently “severe or pervasive” to alter a term or condition of the employee’s employment. To be sufficiently “severe or pervasive,” in the analogous context of race discrimination under Title VII, the employee must be subjected to a workplace “permeated with discriminatory intimidation, ridicule, or insult” or to a discriminatory insult so vile or egregious that a single incident is sufficient, e.g., employer’s use of the n-word toward an employee, which one court described as a vile stereotype dating back to chattel slavery.
If proven, disability discrimination, whether due to disparate treatment or a hostile work environment can result in a judgment for significant damages against the employer, including, back pay, front pay, compensatory damages for emotional distress, pain and suffering and medical expenses, punitive damages, attorneys’ fees, and court costs.
While we simply do not have enough information to know whether the tweets Musk directed toward Thorleifsson were made intentionally or by oversight – Musk subsequently indicated that he was mistaken in his comments about Thorleifsson, which were based on bad information – the lesson for employers is clear: avoid making disparaging public comments about an employee’s disability or other protected characteristics, or risk having to fend off public scorn or defend a lawsuit for violation of the ADA.
If you have questions about your policies and practices to ensure compliance with the ADA, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.
[1] Musk subsequently apologized to Thorleifsson.