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Speculation Cannot Support Hostile Work Environment Claim

by | Mar 16, 2023 | Disability Discrimination, Employment Discrimination, Employment Law, Federal Law Update |

In Boc v. Able Eng’g Servs., No. 22-1664, 2023 WL 2064151, at *1 (7th Cir. Feb. 17, 2023), Brian Boc, who quit his job as engineer, sued his former employer, Able Engineering Services, for disability discrimination and constructive discharge. Specifically, Boc argued that his coworkers engaged in harassment that he traces to his treatment for throat cancer. Even more specifically, Boc alleged that he was required to hydrate with Benefiber (a dietary fiber supplement) and Ensure (a nutrition drink) as part of his recovery and that several coworkers tampered with his drinks. Keeping in mind that Boc returned from cancer treatment in 2013, let’s take a closer look at his accusations:

  • In January 2016, Boc alleges co-workers added two bottles of water to his backpack. After an investigation that led nowhere, the employer suggested that he lock his water supply in a provided locker.
  • In February 2016, he was instructed to fix the temperature in office 254, which he claims implausibly matched the serial number on one of his water bottles.
  • In December 2017, Boc claims that because one of his tracking stickers had the wrong number, a co-worker must have picked the locks and swapped the bottles.
  • In March 2018, Boc asserts that someone once again picked the locks and removed his Benefiber dietary supplement.
  • In August 2018, Boc found the top of his used and empty Ensure bottle unscrewed with residual liquid spilled in his backpack. “Because of his meticulous tracking system, Boc denies that he could have left the bottle unscrewed and insists that someone else picked the locks and untwisted the bottle top.” Id. at *2.

Importantly, Boc could not recall telling anyone that his drinking system or supplements were related to his throat cancer.

Best Lawyer Blogs On Point:

Can speculation be used as evidence?

No. Speculation is not considered evidence in court because it is not based on facts or direct knowledge. Evidence in court is required to be relevant, reliable, and probative, meaning that it must be directly related to the facts of the case, reliable, and can prove or disprove a disputed fact.

Speculation, on the other hand, is a form of inference or conjecture that is based on incomplete information, personal beliefs, or assumptions. It may be tempting to rely on speculation to fill in gaps in the evidence, but it can lead to erroneous conclusions and unfair outcomes. Therefore, courts generally do not allow speculation to be presented as evidence in a trial.

Instead, courts require that evidence be based on firsthand observations, expert testimony, documentary evidence, or other tangible facts that can be verified and evaluated by the trier of fact. This is to ensure that the evidence presented in court is credible and reliable, and that the verdict is based on the facts of the case, rather than on speculation or conjecture.

In Boc, the United States Court of Appeals for the Seventh Circuit affirmed the dismissal and held: “Even if we assume, as did the district court, that Boc’s impairments were covered by the ADA, Boc merely speculates that his coworkers, knowing of his cancer diagnosis, must have interfered with his belongings. But speculation alone is insufficient to raise a genuine dispute of material fact.” Id. at *2.

Best Lawyer Blogs On Point:

How do you prove a hostile work environment claim under the ADA?

To prove a hostile work environment claim under the Americans with Disabilities Act (ADA), an employee must show that:

  1. They have a disability as defined by the ADA.
  2. They were subjected to unwelcome harassment or discrimination based on their disability.
  3. The harassment or discrimination was severe or pervasive enough to alter the conditions of their employment and create an abusive work environment.
  4. The employer knew or should have known about the harassment or discrimination and failed to take appropriate action to stop it.

It’s important to note that proving a hostile work environment claim can be challenging, and it’s a good idea to consult with an experienced employment law attorney to understand your rights and legal options.

Best Lawyer Blogs On Point:

What qualifies as severe or pervasive harassment or discrimination?

To qualify as severe or pervasive harassment or discrimination, the behavior must be both objectively and subjectively offensive. This means that a reasonable person would find the conduct to be offensive and that the individual who is experiencing the harassment or discrimination perceives it as offensive.

The severity and pervasiveness of the harassment or discrimination will depend on the specific facts of each case, and it can be a complex legal determination. Generally, isolated incidents are less likely to be considered severe or pervasive, while a pattern of behavior over a longer period is more likely to be considered severe or pervasive.

In Boc, the United States Court of Appeals for the Seventh Circuit again held that Boc’s claim fell short on this element: “Boc also asserts that the incidents he described were both severe and pervasive. But as the district court rightly explained, the infrequency of Boc’s incidents (five incidents over three years) and the alleged harm he experienced (losing a single Benefiber packet, cleaning a small spill in his backpack, and stress over his belongings) did not materially alter the conditions of his employment.” Id. at *2.

Can employers be held liable for coworker harassment that creates a hostile work environment?

Yes, employers can be held liable for coworker harassment that creates a hostile work environment under certain circumstances. Under the law, employers have a responsibility to maintain a workplace free from discrimination and harassment, including harassment by coworkers.

To hold an employer liable for coworker harassment, an employee must typically show that the employer knew or should have known about the harassment and failed to take appropriate action to address it. The employer’s liability will depend on the specific facts of the case, including the severity and pervasiveness of the harassment, whether the employer had a policy in place to prevent harassment and whether the employer took reasonable steps to investigate and remediate the harassment.

The Seventh Circuit held that Boc struck out on this element as well:

to avoid liability, employers need take only reasonable steps to remedy the situation, see Paschall v. Tube Processing Corp., 28 F.4th 805, 813 (7th Cir. 2022), and, as the district court pointed out, Boc offered no evidence that he provided Able with evidence of wrongdoing that required a remedy—and indeed, the record reflected that Able investigated Boc’s security report, urged Boc to lock his personal belongings, and promised to monitor his concerns.

Id. at *2.

Best Lawyer Blogs On Point:

Do I have a disability discrimination and hostile work environment claim?

If you think that your employer, supervisors, or coworkers are harassing or discriminating against you because of your disability, you should get legal help immediately. Spitz, The Employee’s Law Firm is one of the largest dedicated employee’s rights firms in the United states and files more civil lawsuits per year than does the EEOC. If you need help under the ADA, call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney).


This employment law, employment discrimination, and wrongful termination website is an advertisement. The ADA disability harassment and discrimination materials available at the top of this page and on this employment law website intended to be and only should be considered for informational purposes only. This is not direct legal advice. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.

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