There was this disability discrimination issue . . .
An employer who shall remain nameless had a tradition of throwing a little birthday party for each of its employees on their special day.
The birthday of one employee — we’ll call him “Elmo” — was only one week away.
But unlike his co-workers, Elmo didn’t want anyone celebrating his birthday. His parents were going through a divorce during one of his childhood birthdays, and apparently it was very unpleasant, and ever since that time he couldn’t be the honoree at a birthday party without having a panic attack.
So, on the Friday afternoon before his birthday, Elmo went to see his office manager. He nicely explained to her that he preferred not to have a birthday party because it would be upsetting to him. The office manager led him to believe she’d take care of it. Elmo went home happy.
The office manager apparently did, too, because she left the office and completely forgot that she had promised Elmo that she’d cancel his birthday party. She went out of town without cancelling the party.
On his special day, Elmo came to work. A few people wished him a happy birthday, and Elmo tolerated that well. But then at lunch time, Elmo saw that the break room was fully decorated with streamers, and he saw a big cake on the table.
Elmo’s heart started palpitating, and he immediately left the building, got into his parked car, and ate his lunch there, alone. He also sent a message to his office manager, who was still out of town, and told her he was “a little upset” that the party had not been canceled as she’d led him to believe it would. He was gloomy at work the rest of the day. That afternoon and the next morning, there were questions about “What’s wrong with Elmo?” “Why wouldn’t he come to his party?”
Sometime that afternoon, the office manager told Elmo’s supervisor that he’d asked her to cancel the party, that she had forgotten to do it, and that he wanted to talk with her about that. The supervisor decided to meet with Elmo herself first, and asked the director of business operations to join her.
In the meeting with the supervisor and DBO, Elmo felt another anxiety attack coming on. He had been taught to clench his fists and open and close his eyes to try to fight off the attack. The supervisor and DBO didn’t know this, so they tried to get him to open up about his feelings. Elmo’s face got red, and he kept clenching and squinting. He told them, “Silence. Please be quiet.” He started shaking. Not understanding his behavior, both the supervisor and the DBO got scared. If she’d had her cell phone with her, the supervisor would have called the cops.
She and the DBO left Elmo alone in the room and talked it over. They agreed that Elmo’s behavior was scary. They told Elmo that he’d need to leave and turn in his key fob. Elmo did so without objection and left the facility. He later apologized.
The supervisor and DBO then called the Chief Operating Officer and told her what had happened. They both said they were afraid and felt unsafe around Elmo.
The COO decided that Elmo’s behavior violated the company’s policy against workplace violence.
So Elmo got fired for workplace violence. Technically, threatening behavior.
This happened in August 2019. Last month, a jury awarded Elmo $450,000 in his lawsuit brought under the Kentucky Civil Rights Act. The judgment was issued last week.
I sure hope that birthday party was worth it.
It turned out that Elmo had a genuine, diagnosed, preexisting anxiety disorder. The company said he didn’t disclose that, but Elmo said he did. That creates what the courts call a “disputed material fact,” meaning that a jury has to decide who is telling the truth. The jury is free to believe the company, but it could also believe Elmo.
But, just for fun, let’s assume Elmo never did come right out and tell the company that he had an anxiety disorder. How could this have been handled better — both from an HR standpoint* and from a disability discrimination/accommodation standpoint?
*It appears that no HR person was involved in this, which was probably part of the problem for the company.
- First, an employer should not get bent out of shape if an employee doesn’t want to have a workplace birthday party. Especially if the reason is legally protected, but even if it isn’t.
- Second, the office manager should have followed through and cancelled the party when Elmo asked her to do so. To her credit, she accepted the blame, admitted that she completely forgot about it, and — haven’t we all been there? — these things do happen. It was late in the day on a Friday, and she was going out of town the next week and had other things on her mind. But, really — knowing she’d be out and preoccupied the following week, how long would it have taken to send an email before shutting down the computer and saying, “Elmo doesn’t want a party next week. Please cancel. I’ll explain when I’m back in town. Thx!”
- Third, yes, I am sure that it seemed very odd to the supervisor and DBO that Elmo sat in his car during his entire party and came back inside only when it was over. And then was gloomy the rest of the day. But it wasn’t long afterward that the office manager explained the whole situation. At that point, the matter should have been dropped, with the possible exception of an apology to Elmo.
- On a more positive note (for the company), I’m sure the clenching and squinting and red face and shaking, and saying “Silence,” seemed weird and possibly scary and threatening, although Elmo did not make any threats. The supervisor and the DBO probably did the right thing sending Elmo home and maybe even taking his key fob. It probably made sense to let the COO know, too.
- Fifth (or is it fourth?), the COO determined that the workplace violence policy applied and that Elmo should be fired. But based on Elmo’s unusual behavior, wouldn’t it have made sense to send him for an evaluation before firing him? And while they were doing that, they could still keep him out of work, just to be on the safe side. If he was determined to be a threat, they could take appropriate action at that time. But if they learned that he had an anxiety disorder and that all the weird clenching, etc., was nothing more than a coping mechanism, and that he was not a danger to anybody, they might have been able to offer him the reasonable accommodation of . . . no annual birthday party in his honor! Probably not an undue hardship.
- Sixth (or is it fifth?), they fired Elmo before they had all the facts. Then Elmo got a lawyer and sued the company. And after only 90 minutes of deliberation, the jury came back with its verdict: Elmo had a disability within the meaning of the state Civil Rights Act, he was a qualified individual with a disability, and he was discharged because of his disability.
In other words, the employer threw what turned out to be a $450,000 birthday party. That’s $150,000 in front and back pay, plus $300,000 in emotional distress damages. And court costs. And Elmo’s attorneys’ fees as well as their own. After a jury trial. So, really, that party cost significantly more than $450,000.
And the guest of honor didn’t even show up.