Seasonal Affect Disorder, Quirky Question # 119
Quirky Question # 119:
One of our employees, who works in an interior cubicle, has advised us that she is suffering from Seasonal Affective Disorder (or SAD). She has asked us to move her into an office with windows. This hardly seems fair to our other employees. Some have greater seniority. Others have positions that are at substantially greater pay grades, with far significant responsibilities. Yet very few of these employees have offices with windows. What are our legal obligations? Do we have to provide this employee with a window office?
Roy’s Analysis:
As you undoubtedly are aware, the first question bearing upon your analysis is whether your employee is a qualified individual suffering from a disability, as defined by the Americans With Disabilities Act (ADA). We’ll revisit that issue in a moment, but even if you assume that your employee’s mental impairment, Seasonal Affective Disorder (SAD), constitutes a disability under the ADA, the next question is whether your employee can perform the essential functions of her job with a reasonable accommodation. Assuming that she could perform the job, the third question is whether accommodating your employee suffering from SAD would cause your company an “undue hardship.” Your analysis of each of these issues should resolve the question you posed.
You have not provided much information regarding your employee or the specific job she performs. But, I infer from your question that you consider her to be a qualified individual. My inference is based largely on the fact that you have not referenced any performance deficiencies or described other inadequacies about her job qualifications. You have not stated how long your employee has worked for you, but note that the longer she has been employed, the easier it would be for her to demonstrate that she is qualified for the job, a fact your company recognized by continuing her employment. Of course, if her periodic performance reviews have been enthusiastic and complimentary, it will be even easier for her to demonstrate that she has the requisite job qualifications for continued employment.
The next question is whether an employee with Seasonal Affective Disorder has a disability as that term is defined under the ADA. SAD is a form of depression. Like other mental disabilities, however, individuals may experience it in dramatically different ways. It is unclear from the facts included in your question whether your employee is experiencing severe symptoms or something far less significant. Does the disability affect her ability to perform a major life function? Again, it is difficult to assess that issue based on the information you provided. But, a few of the questions you may want to explore include: how long has she suffered from SAD; what are the symptoms she experiences; is she on medication to address the symptoms; how long does the depression last; are there any remedies for the depression short of exposure to sunlight; is she under the care of a psychiatrist, psychologist, or other mental health provider; could the mental health care provider furnish his or her assessment of your employee, her condition, and the appropriate remedy; etc.
For the purposes of exploring this issue, I will assume that your employee has a cognizable disability under the ADA that affects a major life function – her ability to work. Assuming that to be true, the next issue is whether your company can accommodate her disability without experiencing an undue hardship. Before turning to that inquiry, let me emphasize that determining an appropriate accommodation requires an interactive process and dialogue with the affected employee. Keep in mind that there are no magic words that must be used. As you described, your employee advised you that she was suffering from SAD and proposed a solution that she felt would help her address that impairment – working in an office with exterior windows. An employee’s proposed accommodation is not the only accommodation that your company may wish to consider; your organization may, with input from your employee and her medical advisors (if any), as well as with input and guidance from knowledgeable individuals within your company, consider other equally effective accommodations for the disability your employee is suffering. By “knowledgeable” company representatives, I am referring to company medical personnel, HR representatives (who may know the types of accommodations your company has extended to other employees experiencing depression), and the employee’s managers (who are aware of how SAD has been affecting your employee).
It could be that the best (and most reasonable) accommodation would be to provide this employee an exterior office with direct sunlight, but there may be other equally effective solutions. For example, depending on the nature and severity of your employee’s SAD-based depression, perhaps the problem could be addressed by providing her periodic breaks in which she is permitted to spend time outside your building. Alternatively, she may be to address her depression symptoms by spending part of the day in a common area such as a cafeteria where there is natural sunlight. These and other ideas may be worth exploring with your employee and her health care providers.
Let’s assume, however, that the only accommodation that would adequately address your employee’s illness and symptoms is moving her from a cubicle to an exterior office. If that is true, you need to return to the question of whether this accommodation constitutes an undue hardship. Typically, “undue hardship” inquiries revolve around how much money a company must expend to accommodate an individual. That cost needs to be evaluated in the context of various other factors – how many employees are working at the company; what are the company’s revenues; is the company operating profitability; what impact would the expense of the accommodation have on the company’s profitability; and similar inquiries. In your question, however, you raised a couple of non-monetary considerations that you felt would be problematic for your company. Specifically, you noted that providing this employee an office with exterior windows could create resentment by employees who had greater seniority or employees who held senior positions with greater responsibility yet who also were relegated to interior, windowless offices. You raised the issue of whether this would “fair” to your other employees.
In my view, you may be underestimating the compassion of your other employees. Assuming that the employee seeking the accommodation is a hard worker and valued contributor to your organization, you may find that your other employees are less concerned about the accommodation she is seeking than you may think. At a minimum, you need to explore this issue in an appropriate way. I think it would ill advised for you to make an argument that your company could not accommodate her desire for a reasonable accommodation based solely on your assumption about the impact such an accommodation might have on the attitudes of her co-workers or the morale of the workplace. You will need more compelling evidence of undue hardship than your somewhat speculative assumptions about how others might react.
A recent case that sheds some light on similar issues is the case of Eckstrand v. School District of Sommerset, an October 2009 decision from the Seventh Circuit Court of Appeals. In that case, a lower school teacher suffering from SAD requested the school administrators to move her from an interior classroom to a classroom with exterior windows so she could experience natural sunlight. She explained that she suffered from SAD and that the condition was debilitating. Her explanations were supported by medical evidence.
Despite the fact that there were two classrooms, each with exterior windows, into which her class could have been moved, the school district was unwilling to offer her this accommodation. One classroom was occupied but the teacher in that room stated that she would be willing to switch rooms. The other classroom was unoccupied.
Eckstrand became increasingly depressed and repeatedly requested the school district to accommodate her. Although the school addressed some other, minor issues that Eckstrand stated exacerbated her condition, the administrators still were unwilling to grant the primary accommodation the teacher sought. Within a few months, Eckstrand had to take medical leave.
As described in the opinion, her medical condition was extremely serious. She “suffered from a significant inability to concentrate, organize her thoughts, retrieve words, make decisions, and focus on the needs of her students. She also experienced hypersomnia, racing thoughts, panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide.” Even after she was on leave, Eckstrand’s condition continued to deteriorate, causing her to experience “post-traumatic stress symptomology.” She was unable to return to work and later sued the school for ADA violations and constructive discharge.
The trial court granted the school system’s motion for summary judgment, both on the ADA claims and the constructive discharge claims. The 7th Circuit reversed as to the former issue and affirmed as to the latter.
The Court of Appeals found that there was no question that Eckstrand had a disability and that she had made the school aware of it. As framed by the appellate court, the “critical issue” was whether Eckstrand “presented evidence that the school district failed to reasonably accommodate her.” The court concluded that Eckstrand had engaged in an interactive communication process with the school district and that the school district was responsible for the breakdown in that process.
The 7th Circuit noted that cases involving mental disabilities were particularly difficult because often times they involved medical conditions that were “non-obvious” to the employer. The appellate court observed that its past decisions had demonstrated that employees must “make their employers aware of any nonobvious, medically necessary accommodations, with corroborating evidence such as a doctor’s note or at least orally relaying a statement from a doctor, before an employer may be required under the ADA’s reasonableness standard to provide a specific modest accommodation the employee requests.” Not only did the appellate court find that Eckstrom had met that standard, at least from the point where she had provided a note from her physician, the court concluded that “[l]ittle hardship would have been imposed in providing Eckstrand an available classroom.” The court remanded the case for the jury to determine whether the school district had failed to accommodate her disability.
As noted above, however, the Court of Appeals did affirm the dismissal of Eckstrand’s claim that she had been constructively discharged, finding that Eckstrand had not shown that the “conditions of her employment even approached the intolerable levels normally required in constructive-discharge cases.”
Frankly, I am somewhat perplexed by the court’s constructive discharge analysis. The court found that Eckstrand had presented sufficient evidence to demonstrate that: a) she was suffering from a form of depression; b) the symptoms of her depression were severe, including suicidal ideation; c) she informed the school district of her condition and the seriousness of her symptoms; d) the school district could have alleviated this her problems and addressed her disability by offering her the accommodation she requested with “little hardship;” and e) it was unwilling to do so, without explaining rationally the basis for its refusal. In this context, I’m not sure what option Eckstrom had, but to quit. Accepting the validity of the medical analysis, Eckstrom would have been jeopardizing her life by continuing to work without the accommodation.
The Eckstrom decision provides an interesting analysis of this issue. The concurring opinion also is curious, seemingly suggesting that once Eckstrom’s mental health continued to deteriorate, she no longer was “qualified” to teach elementary school students. The majority, however, noted that it did not need to reach the issue of “whether a person, whose disability is aggravated by an employer, ceases to be qualified under the ADA once the disability has grown sufficiently severe.” Personally, I don’t think that judgment call is too difficult; if the employer is responsible for exacerbating an employee’s disability, it should not be able to avail itself of the defense that the employee ceased to be qualified for the job. This analysis would be self-evident if considered in the context of a physical, rather than a mental, disability. But, as the 7th Circuit opined, that issue has been reserved for another day.
In sum, consider the following six points when you evaluate this issue:
1) Is your employee qualified for the job?
2) Does your employee suffer from a cognizable disability under the ADA?
3) Has your employee engaged in an interactive communicative process to apprise you both of her disability and the accommodation that she deems necessary?
4) Could she perform the job with a reasonable accommodation?
5) What accommodations should be considered, in addition to the accommodation sought by the employee? and,
6) Would the proposed accommodation cause your company an undue hardship?
In my view, if you analyze these issues carefully, you should be able to achieve an adequate resolution to this situation that both preserves your employee’s job and satisfies your company’s ongoing need for a high-performing employee. Good luck!
The Lovable Litigator: Employment Litigation Truths from the Secret Inner Life of Judges and Juries
The Lovable Litigator
By: Judge Lloyd Zimmerman
“See you in court!”
Those dreaded words by the soon-to-be-ex employee, screamed out with red face and eyes bulging, as the workplace door finally swings behind him (but not quite hard enough, you think), marking the end of years of careful documentation of irritating, boorish, and downright scandalous behavior. Yes, this is the employee you finally fired after the entire office refused to come into work and threatened to go to the newspapers, if he remained another day.
The threat leaves one with a visceral sensation, much like waking up in the morning and facing an early dental appointment for a root canal; for others, the words convey a sinking feeling, a premonition that one is about to enter a labyrinth never to emerge – except poorer, fatigued, and worse for wear. To the trained employment law litigator, or the human resources manager, the words leave one wary: What happens in the “day in court”?
I am here to tell you those secrets. After being inducted nine years ago into the tribe of trial judges, following 21 years litigating employment cases, I learned the secret handshake, acquired the decoder ring, and was exposed to the hitherto secret inner life of judges and juries. Several hundred jury and court trials later, here’s a little advice from one who wears the robe: the good, the bad, and the ugly of what happens in court, on the witness stand, at counsel tables, in the jury box and in the deliberation room.
First of all, it’s not what you think. The typical employment case takes at least a year to wind itself through the court system in anticipation of the first day of trial.
Alas, for the plaintiff’s lawyer, increasingly, the question is: “trial, what trial?” As the published volumes of specialized labor and employment law attest, in most parts of the country, over 90 percent of employment cases never make it to trial. They are dismissed under a procedure known as “summary judgment,” in which judges assess whether the disputed facts are sufficiently “material” to warrant a trial. The employment law world is increasingly marked by summary dismissals. But that’s not much consolation to the employer who has to pay thousands of dollars in legal fees, or even the plaintiff’s lawyer who invests blood, sweat, and tears only to have the case thrown out on its rear.
How to avoid those costs of combat? The studies show that only about five percent of all employees who are angry about an employment decision even take the time to complain internally to the employer, much less file a discrimination charge or lawsuit. What provokes an employee’s threat to “see you in court” rarely requires a fancy degree or three decades of litigation practice to understand. It is behavior that violates the kindergarten rules. Chewing out an employee in a loud temper tantrum. Viewing workplace rules of behavior as no different than at a bar. Court studies show that people remember how they felt long after they remember the words that were spoken and that 80 percent of all meaningful communication is nonverbal.
So sitting down with a problem employee at the get-go, in a polite, classy, quiet way, with specifics, is the way to go.
Conversely, at the root of many a thorny lawsuit is the employer who becomes a raging bull. As a sign I saw posted in a grocery store once read, “Never wrestle with a pig. You both get dirty, and the pig likes it.” Stay calm.
Beyond that truth, it is amazing how many employers manage to fire the problem employee on the Friday before Thanksgiving or Christmas, or in what has become an accustomed workplace ritual, by escorting the employee out of the building in the equivalent of a “perp walk,” holding the box of his or her possessions and bracketed by two security guards.
Juries find this very annoying. They tend not to have law degrees or special human resources training, but they know a bully when they see one. And they know what it feels like to go home after being treated like a door mat, especially after years of dedicated service.
Don’t do it. Make your point with class. Use words suitable for church, or court, so you won’t worry about how they sound if they’re read back to you, as they may be, in a five-day deposition, or someday, at a trial.
Now about that day in court.
A short aside. If you have that day in court, the hard truth is you have already lost. If you’re an employer, it means that you spent thousands of dollars in legal fees getting to that day, along with the time, distraction, and irritation of defending a lawsuit rather than addressing whatever you thought the true reason was you went into business. It means you have handed off a business decision to a jury of six people who don’t really know you. If you’re the employee, it means that you have lived and breathed a lawsuit for years rather than writing that novel, running a marathon, or taking a trip to the place you’ve always wanted to see. You’ve taken all of that emotional energy and focused it on the awful experience, much like a bad marriage, which is what many bad employment relationships resemble.
It’s why practitioners of family law and employment law will tell you that on the emotional Richter scale, the two are often indistinguishable.
What happens on that first day of court – the most amazing thing! Out of years of orderly preparation, you have chaos.
First of all, you’re tired. Of course you’re tired! You’ve been up most of the night, unable to sleep, thinking about this event that has been the focus of your dreams, hopes, and prayers for these many months: The Trial.
If you are a litigant, meaning that no one is paying you to be in the courtroom, you did not sleep the night before. It’s not good if the judge has the same look; a cranky, disheveled looking judge does not bode well. Even if the judge is neither cranky nor disheveled, but remarkably polite and charming, there is this matter of The Large Docket – a fact of life for judges. The fact that your immensely important case, which has taken all of your waking hours, what you think about going to bed, and what you think about waking up, is but one of hundreds of cases on the judge’s docket. Your judge has probably read all of the lengthy trial briefs the night before, and just hope that there have been no late night calls or family emergencies in the judicial household to interfere with the orderly absorption of your legal briefs.
And then there is that feeling, that inevitably worrisome feeling, when the jury that will be yours, that will decide your fate, files into the courtroom, to begin the process of voir dire, or questioning to see if they can be fair and impartial. They have been caged in the jury assembly room, removed from their jobs and their family life, for your case. If you are an employer, the odds are good that they will have had a negative workplace experience; or someone they love, or their best friend, will have recently been fired inhumanely and without just cause. There are no special training requirements to be a juror. You can’t be a judge, and you should be over 18 and generally, not a convicted felon.
If you are an employee awaiting your day in court, don’t rest easy. Juries are instant experts in workplace behavior. They know the person who spends all day gossiping on the phone or surfing the Internet, adding their undone job to another person’s workload. They know about office favoritism. They are experts. They don’t need an expert, even if you’ve hired someone for thousands of dollars to explain with twenty dollar words or concepts what every juror intuitively knows.
And juries tend to award money as if it was coming out of their own pocket. Yes. They’re often cheap, or at least frugal. They make flow charts and decision trees about the evidence and the law. They view the law from the judge as gospel. No one gets rich in a jury trial unless the employer or its attorney manages to inflame the jury. At one time, the largest sexual harassment jury verdict in the country came after defense counsel gave the jury the finger, while demonstrating what he claimed the plaintiff did to the supervisor on her last day of work, after enduring years of sexual harassment. Just hope that your lawyer doesn’t inflame the jury with a too-cute show of the finger.
Lest we forget: So yes, you’re nervous, anxious, and upset about trial, but You Have a Lawyer. A highly trained skilled professional adept in the ways of the courtroom.
Maybe. Or Maybe Not. The most surprising fact about many civil lawyers in trial is that they have spent years getting to trial without having a good clue about how to actually try a case. It’s a fact. What do people talk about in employment law seminars? They talk about the one case somewhere in the country that went to a jury verdict, and they analyze it to death. And that one case becomes the bluebook value of what that sort of claim is worth, or not.
The good, the bad, and the ugly of what happens at trial with lawyers is this: They spit toward the jury box during their opening statement. They use big lawyer words that make the jury think the lawyer is talking down to them, or is too busy to use plain English. Lawyers sometimes well up with tears – juries will tell you in the post mortem – it’s embarrassing. They forget to dress right. They let their shirt flap hang over their pants, their tie is hopelessly loud or clashing, or their hair is a distraction. Tsk, you say, juries don’t focus on those things. Trust me: they watch you like a hawk. Everything. You. Do.
And then there is you, the client. Your lawyer is perfect. She does none of those bad things. She is poised, eloquent, a gifted communicator. She never uses a $20 word when a 25 cent word will do. She’s like your favorite neighbor talking to you over the fence. The good host telling a good story when you’re a guest at dinner.
So what happens when your lawyer is up making the world’s best argument for you. You sit there, in front of the jury, and show by your body language that you know your lawyer is putting on a good show, but it ain’t all true. Or just as bad, the opposing lawyer is dicing up your case in closing argument, and you look like you believe her.
It’s true. After years of preparation, it comes to this: No one thinks of how you should look when the opposing lawyer is making the final pitch before the jury goes back to deliberate. If you look sad and dejected, it screams out: you’re guilty. You have no case. Or if you’re the lawyer, do you sit next to your client like you like him, and believe in him, or do you sit like he has a contagious virus?
The bottom line for lawyers is this: explain your case before the day in court to a neighbor, over the fence. Don’t tell it to an associate who depends on you for a promotion. They will always tell you how brilliant you are. Talk to the jury. Maintain eye contact. Don’t guess who the foreperson will be. You’ll be wrong. Don’t assume you’ll be calm, relaxed, or well-dressed. You’ll be exhausted and disheveled. Look in the mirror before you go into court and say to yourself: you’re not much to look at. Lose the arrogance and cockiness. If you’re tired, tell the jury – you didn’t get much sleep last night. You lost your suit on the way to the airport. Be genuine. Juries love a human being.
And if it’s a judge you face, don’t assume that judges love a boring presentation, any more than a jury does. Don’t put the fact-finder into a coma on the first day of trial. Be funny. Be charming. Be real. If you can’t be any of those things, be yourself. Don’t oversell your case. Judges know that lawyers who have neither facts nor law make up for it with volume. It doesn’t work.
It’s okay to be short, to be brief, and to remember that the two sweetest words in the English language, other than “I’m done,” the words that convey a sense of peace, contentment, and happiness, are “In closing.” And then make sure that you really are closing. Juries will fold their notepad with that happy feeling upon hearing those words. You don’t want to let them down. Your word is your bond.
If you’re the one headed for court because you’ve either sued or been sued, remember that it really isn’t a lottery. You won’t hit the jackpot. The folklore is wrong. If you get a runaway jury verdict, it might feel good, if you’re the plaintiff, for the minutes, days, months, or years until it’s reversed on appeal. If you’re the employer and the jury rules in your favor, that moral vindication will pale after you open the bill from your lawyer.
Court is a funny, scary, amazing place where people spend two years prior to trial saying the answer is yes, and then on the stand, when you least expect it, say the answer is no. People laugh when they mean to cry. Lawyers spend all night practicing their lines and stand up and tell the jury that their client’s name is Smith when it’s really Jones.
The American system the world has come to know for the resolution of disputes, going back to the time of ancient Greece, is better, most days, than resolving the disagreement in a duel, or determining truth by who lasts longer on the rack. But a kind word in the face of a disagreement, taking the time to listen, to be respectful, to walk in the other person’s shoes, can save a lot of angst. It might save you from spending your retirement years on a hobby called litigation, when you would rather be living out your dream of the Peace Corps, or playing in a rock band.
And I’ll end on a note of what might seem like heresy. Litigators connote the image of pit bulls. But the best litigators are kind, warm, thoughtful people, who are good listeners, likable, and maybe even lovable (lovable litigator: oxymoron you say!) Most cases settle. Take the time to know your opposing lawyer, to know about her family, her dog, her dog’s name, her successes, her favorite sport: 98 percent of the time, your case will settle unless you really annoy the opposing lawyer or her client, where they make it their goal to exact revenge for bad litigation behavior.
See you in court!
Associational Gender Discrimination, Quirky Question # 118
One of our male employees (call him Mr. X) recently complained that a supervisor at our company was sexually harassing Mr. X’s girlfriend, also one of our employees. We advised him that we would investigate. Apparently, however, our investigation was not moving sufficiently fast for him. When Mr. X encountered the supervisor in routine work settings, he was confrontational and unpleasant. We advised him he needed to tone it down and let our HR Department do its work, but that just seemed to anger him more. The supervisor who had been accused of harassment informed us that he was getting very nervous about Mr. X’s antagonistic conduct. Based on this escalating situation, we terminated Mr. X’s employment.
He now has filed a charge for “associated discrimination” and retaliation. Say what? Can a significant other of our employees claim discrimination because of the way our company allegedly treats their girlfriend?
Roy’s Analysis:
Your question implicates a number of interesting issues. First, are courts recognizing “associational discrimination” claims? Second, have they done so in the context of gender discrimination claims? Third, even if an associational discrimination claim were not recognized, would your employee have any other recourse? Finally, should your company accept otherwise problematic behavior from the employee simply because he has raised discrimination issues with management? Let’s examine each of these issues sequentially.
As I have discussed in other Blog Postings, courts have recognized associational discrimination claims. (For other analyses of this subject, use the “View by Topic” bar and scroll down to Associational Discrimination and Inter-racial Marriage.) Typically, these claims have arisen in the contexts of family relationships (spouses, parents/children, or other familial relationships). They also have generally been limited to contexts involving inter-racial associations, e.g., inter-racial marriage, or close friendships between members of different races.
The fact pattern you described, where one employee believes that his discharge was caused by his objections to the alleged sexual harassment of his girlfriend, also one of your employees, is unusual. Recently, however, the United States District Court for the Eastern District of Pennsylvania, examined a similar factual pattern in the case of Stezzi v. Aramark Sports, LLC, No. 07-5121 (July 30, 2009). In Stezzi, the plaintiff brought claims under both Title VII and the Pennsylvania Human Rights Act, contending that his discharge was caused by his association with his girlfriend/co-worker who allegedly was a victim of sexual harassment. The plaintiff complained to management about the way in which his girlfriend had been treated. Thereafter, he claimed that he too was treated unfairly by the same person who had been harassing his girlfriend.
Stezzi brought claims for associational discrimination and retaliation. These claims were presented to the District Court on summary judgment. As to the associational discrimination claim, the federal court noted that although courts have recognized Title VII claims for associational discrimination, “such claims are typically predicated upon discrimination against a plaintiff because of race.” The court further pointed out that “there is currently no precedential support to extend a Title VII claim to [gender-based claims].” The court observed that the Third Circuit also had rejected an associational discrimination claim based on gender.
While the Stezzi court was unwilling to extend associational discrimination claims to the context of gender based discrimination, the court did not grant the defendant company’s summary judgment motion on the plaintiff’s retaliation claim. This analysis bears upon the third issue referenced above – would your employee have any claims besides his associational discrimination claim? As you noted in your fact description, your male employee reported the alleged sexual harassment of his girlfriend. As you stated, he apparently concluded that the “investigation was not moving sufficiently fast for him.”
(Digressing on that point for a moment, you do need to move expeditiously once you have received a complaint of sexual harassment. Courts have little tolerance for companies that fail to investigate claims of harassment or that fail to take appropriate remedial action when warranted. You do not describe in your question how much time your company took with its investigation, whether you determined that your female employee had, in fact, been harassed, or whether disciplinary action was warranted. But, I emphasize the obvious to state that you do need to be sensitive to the issues surrounding a harassment complaint and the speed with which you initiate and complete your investigation.)
Returning to the issue of retaliation, it is possible that your male employee, while unlikely to persuade a court to recognize an associational discrimination claim based upon his gender, may well have a retaliation claim that could survive a motion for summary judgment. He formally complained about the way a manager was treating one of your female employees and the company terminated his employment soon thereafter.
This leads to the fourth issue presented by your fact pattern – what conduct did your employee engage in that led to his discharge? You suggested that your employee was “confrontational” and “unpleasant” and that when you advised him that he needed to modify his behavior, that only “angered him more.” As you described, the supervisor who allegedly engaged in the initial harassment informed your company that he was becoming nervous about this employee’s behavior. This fact pattern implicates two important issues.
First, simply because there is temporal proximity between a complaint about discrimination and a subsequent discharge does not mean there is a causal relationship between these two events. Your company does not have to accept otherwise unacceptable behavior merely because the employee engaging in the unacceptable conduct has made a claim of discrimination. You will have to demonstrate to the factfinder (whether judge or jury) that your disciplinary actions were based on intervening events, but if you document the problems you are encountering, and counsel the employee regarding the ramifications of continued misconduct, you should not be reticent to discipline your employee (including discharge if necessary), if the problematic behaviors continue. In your fact pattern, it appears that this was your conclusion. Now, you will need to explain that decision persuasively to others.
Second, your observation that the alleged harasser was becoming “nervous” about the reactions and behavior of the employee who complained suggests also raises a red flag. Unfortunately, in contexts like this, there is always an under-current risk of workplace violence. You do not want to ignore this possibility, even if the likelihood is slim. Ensure that you explore the relevant issues so you can realistically evaluate this risk. The bottom line is that absent a judge who is willing to expand the associational discrimination analyses into a new area, you likely need not worry about a claim for gender-based associational discrimination. But, once a formal report of discrimination, including sexual harassment, has been made, the complainant may be able to assert claims of retaliation if he later suffers adverse job consequences. Move cautiously once a formal (or informal) complaint has been made, but don’t be reluctant to take appropriate disciplianary action if intervening events warrant it.
Managing the Chronic Complainer, Quirky Question # 117
We have an employee who has become a “chronic” complainer. She initially complained to her manager that her annual bonus was incorrectly calculated and that she believed the alleged error was because of her sex and/or age. The manager referred the complaint to Human Resources, which thoroughly reviewed the bonus calculations for that department and concluded no error or discrimination occurred. The employee’s manager and a Human Resources representative met with her to explain how her bonus had been calculated. The employee was not happy that her bonus would not be changed, but she could not explain why she believed the company’s bonus calculation was wrong.
It has been six months since that meeting, and things have really gotten out of hand. The employee complains that everything and anything is sex or age discrimination. She has begun to voice her complaints at team meetings, which is distracting and is starting to have a negative effect on team morale. She also sends long e-mails to her manager and Human Resources, listing a litany of issues and demanding an immediate response. We have done our best to give this employee the benefit of the doubt – Human Resources has met with her and her manager on numerous occasions, but, so far, there has been no merit to her complaints. Needless to say, she is wasting everyone’s time and it has gotten to the point that she seems more focused on complaining than getting her job done. Before this, she was a good performer. At what point can we say “enough is enough”? Can we discipline this employee for making too many baseless and distracting complaints?
[Readers: Quirky Question # 117 was posed to my colleague, Nicole Haaning. Her analysis is set forth below. If you have any questions about Nicole's analysis, do not be reticent to contact her. Nicole can be reached at 612.492.6635 or at haaning.nicole@dorsey.com. Additional information regarding Nicole is available at: http://www.dorsey.com/haaning_nicole/.
If you are interested in additional analyses of retaliation issues, use the "View By Topic" bar above the Employment Trivia Question to the left. Regards, Roy]
Nicole’s Analysis:
Whenever an employee has complained about discrimination, harassment, retaliation, or other illegal or improper conduct, an employer should proceed cautiously before taking any disciplinary or other adverse actions against the employee.
Various statutes – including state and federal anti-discrimination statutes – prohibit retaliation against employees who have engaged in protected activity by, among other things, making a complaint. That said, courts have frequently held that an employee’s “protected activity” may be so disruptive, unreasonable, or inappropriate that it does not warrant protection. For example, courts have held that the following behaviors are not protected activity:
• Copying and/or accessing confidential documents or information to support an administrative discrimination charge. Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir. 1998) (employee did not engage in protected activity when he copied confidential documents to support his discrimination claim); Comiskey v. Auto. Indus. Action Group, 40 F.Supp.2d 877, 899 (E. D. Mich. 1999) (employer had legitimate reason to fire employee who accessed confidential computer files to gather information in support of his wage discrimination claim).
• Yelling at a manager for failing to provide a reasonable accommodation. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir. 1999) (court upheld deaf plaintiff’s termination for insubordination after he yelled at a company owner for refusing to buy a TDD that would allow him to make business and personal calls).
• Neglecting job duties in order to pursue complaint. See EEOC v Shoney’s, Inc., 536 F. Supp. 875 (N. D. Ala. 1982) (employer had legitimate reason to fire employee who neglected his job for three days in order to pursue an EEOC complaint).
• “Harassing” coworkers to join or support discrimination complaint. Jackson v. St. Joseph State Hospital, 840 F.2d 1387, 1390 (8th Cir. 1988) (harassing coworker to sign affidavit in support of EEOC complaint was “bizarre,” “objectionable,” and legitimate reason for termination).
• Refusing to perform job duties. Hazel v. U.S. Postmaster General, 7 F.3d 1, 4 (1st Cir. 1993) (plaintiff believed he was given undesirable job assignment in retaliation for investigating sexual harassment complaints and refused to report to his new assignment; the court upheld his discharge for insubordination, noting, “the right to oppose discrimination is not a right to refuse to work on account of discrimination”).
A few courts have also grappled with the issue of the “chronic complainer” and have held, under certain circumstances, that making too many complaints itself can be grounds for termination or other adverse employment actions. Two cases are highlighted below where courts granted summary judgment to employers that took adverse actions against an employee for making too many complaints.
In the first case, Webb v. Xcel Energy, Court File No. EM 04-013868, slip op. (Minn. St. Ct. Jan. 18, 2006), Dorsey won summary judgment on a Minnesota Human Rights Act retaliation claim where the plaintiff was terminated for several reasons, including that she repeatedly made baseless complaints against a coworker.
For reasons no one ever really understood, the plaintiff – a woman – had it out for a contract employee, another woman, who worked on the same floor, but in another department. The plaintiff filed an internal sexual harassment complaint against the contract employee. The company investigated but found no merit to her allegations. The company reported the results of its investigation to the plaintiff, but she wasn’t satisfied. (Frankly, it seemed that nothing short of getting the other woman fired would have satisfied this employee.)
She began to inundate Human Resources with “complaints” about the contract employee, but the “complaints” were simply sightings of the contract employee in and around the building where both of them worked – for example, that she had seen the contract employee in the break room, in the restroom, when she was getting out of the elevator, etc. Human Resources met several times with the employee to explain that she was likely to cross paths with the contract employee during the work day. Even so, the company offered several measures to limit her interactions with the contract employee. The plaintiff refused all of them.
Things came to a head, when, after months of complaints, the plaintiff called up the contract employee’s manager and yelled at the manager because she had seen the contract employee in the corridor, talking to another employee. The company terminated the plaintiff’s employment and, in a letter detailing the reasons for her termination, included (among other reasons) the fact that she persisted in making baseless complaints against the contract employee.
The trial court granted defendant’s motion for summary judgment, finding that the company terminated the plaintiff’s employment for legitimate, non-retaliatory reasons. The Court of Appeals affirmed the trial court’s grant of summary judgment. Webb v. Xcel Energy, 2007 Minn. App. Unpub. 453 (Minn. Ct. App. May 15, 2007).
In the second case, Rollins v. State of Florida Dep’t of Law Enforcement, 868 F.2d 397 (11th Cir. 1989), the Plaintiff alleged she was denied promotions because of her race. At summary judgment, the employer presented, as the sole non-discriminatory reason for denying the plaintiff’s requests for promotion that she had “disrupted the workforce by repeatedly making spurious claims of racially disparate treatment in an extremely hostile and antagonistic manner.” On appeal, the plaintiff argued that this reason was retaliatory.
The 11th Circuit upheld the trial court’s order granting summary judgment in the employer’s favor, holding that “to qualify for the protection of [Title VII] the manner in which an employee expresses her opposition to an allegedly discriminatory employment practice must be reasonable.” The court based its finding that the plaintiff had not raised her complaints in a reasonable manner on the following facts:
• She refused to follow the avenues prescribed for bringing complaints – among other things, she would write allegations of discrimination on her weekly time sheets.
• The Court also found that the “sheer number and frequency of Rollins’ complaints, most of which were plainly spurious, was overwhelming.”
• Her supervisor testified that “he spent more time addressing Rollins’ repeated complaints of racially discriminatory practices than those raised by all of his other employees combined.”
• He also testified that her “constant complaining and unsupported allegations had a damaging effect on morale within his unit.”
• The court provided one example of a complaint it found to be especially spurious: some employees organized an outside of work “beer bash” to watch an “important” Florida State University football game; the plaintiff “vehemently protested” the social event, arguing that equal treatment was not accorded Florida A&M University, a predominantly black university.
• The Court last found that the plaintiff raised her complaints in an “antagonistic and insubordinate” manner. On one occasion, she called her supervisor a “fool” and told him “to look up the definition” because it was “accurate.”
It is important to note what both the Webb and Rollins cases have in common. First, both companies originally gave the plaintiff the benefit of the doubt, conducting thorough investigations of their complaints before reaching the conclusion that the complaints were baseless. Second, the employees made complaints in inappropriate, disrespectful, or disruptive ways.
In your situation, it appears the time is right to have a very frank conversation with the employee, explaining that you have repeatedly listened to and addressed her concerns but that she has not provided any information suggesting that she has been discriminated against. Share your concerns that a lot of time has been spent by her manager and Human Resources responding to her concerns and that it appears she has lost focus on her job. While you should not forbid her from raising concerns, encourage her to think carefully before doing so. You should request that she raise any concerns privately with her manager or Human Resources, explaining that team meetings are not the appropriate forum to raise such issues. If the employee persists in her behavior, disciplinary action, up to and including termination, may be appropriate to address the problem.
Use of Surveillance Cameras to Monitor Worksite, Quirky Question # 116
Quirky Question # 116:
I am the owner of a small private company. I was recently alerted by my secretary that various computers around the office, including some in private offices, have been used late at night to access the internet. The late-night use has included accessing pornographic websites from a couple of the offices. I need to discovery who the unauthorized user is, but I cannot afford a security system or security guards. Can I install a hidden video camera in the offices that have been accessed?
[Readers: Set forth below is our monthly West Coast Quirky Question. The analysis that follows was provided by Jennifer Prieb of our Palo Alto office. If you have any questions about this analysis, please don't hesitate to contact Jennifer directly at 650.843.2745 or via email at prieb.jennifer@dorsey.com. Additional information regarding Jennifer is available at http://www.dorsey.com/prieb_jennifer/. Regards, Roy]
Jennifer’s Analysis:
Well, that depends on a number of factors. How “private” are these offices? What is the general layout of your workplace? What exactly do you intend to video, and when?
In our answer to Quirky Question #49, we covered the general issue of surreptitious video surveillance to monitor employees. We also covered employee access of pornographic websites in Quirky Question #109. But your question is a little more specific in that it includes private offices and the use of video surveillance to catch the culprit who is accessing pornographic websites late at night.
A case with similar facts recently changed California law governing video surveillance of employees. There, the California Supreme Court reversed the Court of Appeals’ decision in Hernandez v. Hillsides, Inc., No. S147522, 2009 Cal. LEXIS 7804 (August 3, 2009). [Please note that this case was referenced in our answer to Quirky Question #49 and, as a result, the analysis of that case in Question #49 is no longer accurate.]
Previously, a California employee could succeed in a cause of action for invasion of privacy even if he could not establish that he was actually viewed or recorded. Now, however, an employer’s intrusion into an employee’s privacy may be justified, depending on the particular office environment and the nature and scope of the employer’s conduct.
Employee Expectations of Privacy
If you want to install hidden video cameras in the private offices that have been used for late-night Internet access, the first issue you need to consider is the privacy interests of your employees whose offices are involved.
In Hernandez, the Court began by noting that “while privacy expectations may be significantly diminished in the workplace, they are not lacking altogether.” The Court explained that workplace expectations of privacy vary, depending on whether the employee could be overheard or observed by others, the physical layout of the office intruded upon, and the nature of the activities commonly performed in such offices. At one end of this spectrum are offices in which work or business is conducted in open areas, in plain sight of supervisors, customers, and visitors. On the other end of the spectrum are areas in the workplace that are subject to limited view and hearing, restricted access and closed doors or blinds.
Your question says that the offices at your company are “private.” Without more details about your workplace layout, I can only advise you that employees in private offices which are separate or enclosed from other work areas have a heightened expectation of privacy. Given the extremely intrusive nature of hidden video cameras, even some employees who share offices but work in relative seclusion have an expectation to be free from secret filming by their employer. Under circumstances nearly identical to yours, the Court in Hernandez found that the employer intruded on the employees’ zone of privacy because the employer used the highly invasive method of video surveillance where plaintiffs had a heightened expectation of privacy in a relatively secluded office.
In its decision, the California Supreme Court also suggested that an employer who wishes to install surveillance equipment inside employee offices should provide notice to its employees that they will be subjected to the risk of such surveillance Employers who obtain consent to the possibility of intrusion can reduce the employee’s reasonable expectations of privacy because the employees have been put on notice of potential surveillance.
Offensiveness of the Intrusion
An employer may be able to justify an intrusion into employee privacy expectations if the surveillance is for a legitimate business purpose and limited in scope. The second element to a claim for invasion of privacy requires that the intrusion must be “highly offensive” to a reasonable person and an “egregious breach of the social norms.” To determine whether an intrusion falls into these categories, courts look at the place, time and scope of the employer’s video surveillance efforts, as well as the employer’s motives and justifications.
In the Hernandez case, the employer was careful in choosing the location of the video camera. The company first tried to videotape the culprit from an open workplace area but, due to high traffic, needed to find a more secluded area in which the unauthorized computer use occurred. In the plaintiff’s office, the employer focused the camera only on the specific computer workstation in question. He was also certain to limit the scope of the surveillance to a time only after the plaintiffs’ shifts ended and they had left the facility for the night. He never activated the system during regular business hours when the plaintiffs were present, and plaintiffs were never secretly viewed or taped. Finally, the employer’s purpose was legitimate: to determine who had been viewing pornographic websites at the nonprofit residential facility for neglected and abused children. Thus, even though the employer invaded the employees’ expectations of privacy, its actions were justified because they were narrowly tailored and served a legitimate purpose.
Tips for California Employers
1. Understand that employees have a reasonable expectation of privacy in the workplace and that expectation is heightened in secluded offices where an employee does not expect to be overheard or observed by others. There is a broad spectrum of employee privacy rights in the workplace, depending on whether the workplace is open to the public, the employee works in an open area or an office with a door that closes or locks, or an employee shares offices.
2. Provide employees with formal notice that they are subject to surveillance. Any monitoring practices or policies should be carefully followed in order to decrease or eliminate a reasonable expectation of privacy.
3. Monitor employees in the least intrusive manner possible, considering the place, time and scope of surveillance. Also, be certain that you have a legitimate purpose to conduct the surveillance.
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