A deputy clerk of court in North Carolina allegedly suffered from social anxiety disorder, characterized (per the DSM) as “marked and persistent fear of … social or performance situations in which [a] person is exposed to unfamiliar people or to possible scrutiny by others.” While these fears led her to request to be insulated from customer service responsibilities, they did not inhibit her from secretly tape recording interviews with four supervisors involved with her firing. Reversing a lower court, the Fourth Circuit allowed her ADA accommodation claims to go forward in what Robert Fitzpatrick calls a “remarkable, and potentially far-reaching decision.” Excerpts from Fitzpatrick’s account:
Similarly, in a footnote, the Court indicated that if the plaintiff, took longer than necessary to complete her microfilming work and procrastinated in returning to the front desk, as the defense had alleged, “this may constitute avoidant behavior consistent with a diagnosis of social anxiety disorder.”
The court also reasoned that because the employer, on top of the various reasons it cited in firing her, later cited additional grounds for firing when the case reached a judge, this suspicious “piling on” could be read as evidence of pretext.
21 Comments
This looks like one of those, “bad defendants make bad law” cases. With a better internal EEO investigation, an effort to actually establish that the proposed accommodation would cut the heart out of the job, and a slightly less hasty and more consistent termination, I could see this case going the other way.
That seems to be the problem in many of these cases, the HR people are not lawyers and are unable to deal properly with the situation. Reasonable accommodations cases can be particularly thorny.
In a small company, or even some fairly large ones I have seen (e.g. 2,000 employees) the HR people have allowed things to occur that can establish plantiff’s prima facie case long before an attorney is consulted.
I am going to take a little bit of a hard line here.
A person is hired to benefit the company. Period. If you want to make the claim that people are hired to benefit the worker, please look at other types of economic systems.
I know that this is a little off the topic, but anytime a company has to justify terminating a worker past “they didn’t or couldn’t do the job” seems wrong to me. It should be none of the government’s business – especially since many of these laws and rules are made by people who never owned a company or served in any management capacity.
If they want to demonstrate how a business should be run according to what they think is “fair” or whatever you want to call it, they should quit their government job and get out on the front lines of people who do real work and produce actual products and services.
You were not joking about taking the hard line.
I want to make sure I understand what you are saying. I thiink your position can be one of two: 1) if a company says “they didn’t or couldn’t do the job,” they should not be questioned, or 2) if a company says “they didn’t or couldn’t do the job” and the employee cannot show otherwise, that is the end of the matter.
IMHO, the first option is indefensible.
Also, IMHO, the second option is defensible, but is not consistent with the law as it stands. I think there is actually a decent policy argument supporting this position on the margins. However, if a company has two equally bad employees and fires one because she is black (or female, gay, disabled, old . . . ), but keeps the other one, I am not sure that it would be bad public policy to further investigate the issue and (perhaps) compensate the fired employee.
Some jobs don’t work out. You get fired or quit, maybe learn a little something along the way, and then . . . go get another job. This has been done millions of times, by millions of people. No, really, it has! And it did not stop people from making a living. Nor did it stop our economy from becoming a powerhouse. In fact, a dynamic labor market greatly aided the process by allowing managers to manage free of Monday-morning quarterbacking by the government, to say nothing of the sheer cost of litigating countless human resources decisions.
But, somewhere along the way, we decided to trade this economic dynamism for the illusion of fairness in the labor market. (Fairness now means, capable employees are held to one standard while incapable employees require seemingly endless “accommodations.”) All this to remedy the horrible problem of a fired employee moving along with life and opening up the want ads.
Dem,
An interesting point of view. It would work if there were there no disabilities or discrimination.
How do you explain that many jobs in the south (and other places) were not open to minorities in the 60s? The discrimination did prohibit people from making a living. Institutional racism is insidious and destroys the commonweal. Arguably, it is in the best interest of society to pursue a policy of punishing those who discriminate on improper bases. Failure to do so leads to things like revolution and terrorism (see, e.g., Rowanda, the former Yugoslavia, and South Africa).
Our country is better because we strive to close the gaps between the races.
As for disabilities, this is a particularly tough problem. There are many people out there with disabilities who can contribute to society. however, in some cases it is expensive or burdensome to accommodate the disabilities. This is a societal problem. We have chosen, for better or worse, to put that burden on the business community. Sure, we could put it on government, but that would greatly increase the size of government.
Please enlighten me. If there is a better way than the ADA for society as a whole, I would like to hear about it.
Allan,
In answer to your points:
1) Questioned by who? I think your position is indefensible as what you are advocating is that the decision of someone else should override that of the people closest to the situation or, just as importantly, those who have experience in matters of job performance or management.
As I am sure you are aware, most businesses in this country are small to mid sized. Please tell me what experience some lawmaker, rule maker or even a judge has that should supersede that of the current actual owner or manager?
You are quick to judge or comment on the actions and motives of companies but yet seem to have some blind faith in a person sitting in a room saying “we should make this a rule or law that businesses have to follow.”
When it comes to decisions and basis of firing people, you can take the side of the inexperienced person. I am going with the person who has the experience and whose decisions have real life consequences to the life of the business, other employees, and themselves.
2) However, if a company has two equally bad employees and fires one because she is black (or female, gay, disabled, old . . . ),
So your point is that the company that hired a person with those attributes will now seek to terminate them because of those same attributes?
I don’t think that you can possibly believe that.
Ok. Just to be clear, you think that we should not look behind an employment decision if the employer’s defense is “they did not or could not do the job”. I believe that position is indefensible in the real world. If, in the real world, people were only hired and fired based on merit, that might work. But that is not the real world. It is naive to think that it is.
As to 2) that is not what I think. I think that one person might hire an employee with some attributes and, when that persone leaves, another person would fire the employee because he had the attributes. Or, when it came time to lay people off, the employer might be likely to first lay off people with those attributes.. Or when it came time for promotions or other work-place benefits, the employer would favor someone else who does not have those attributes.
I am not against giving a presumption of regularity to the employer. In fact, that is exactly what the law gives, a presumption that an action was taken for reasons other than a violation of the law, i.e., the McDonnell Douglas paradigm. It seems that you are advocating for an irrebuttable presumption to the employer.
I think we are both advocate the position that business decisions should be made on the basis of business judgments. My question is: how can we assure this happens?
Allan your “indefensible” option was the law in this country until relatively recently. And as applied to disability, it made perfect sense, because whether an employee is capable is best left to the judgment of his/her supervisors. So too the question of whether any “accommodations” are due, and, if so, whether they are “reasonable.”
The ADA destroys management discretion and subjects employers to huge uncertainty over how to deal with an employee who can’t (or won’t) perform basic functions of the job. In the case at hand, the employee made clear that she could not perform a function the employer deemed essential. Why judges — who usually have little to no business experience — are tasked with second-guessing the necessities of a job is beyond me.
The plaintiff was essentially asking to be given a different job than the one she was hired to do. The employer’s refusal should end the matter. The law should tell the plaintiff to stop whining and get another job that suits her limited skill set. Instead, we have years of expensive litigation and the creation of even more uncertainty in the once simple matter of hiring and firing employees.
And the meek shall inherit the Earth . . .
Dem,
I concede that yours is a valid point of view, which, obviously, I and most of the country do not agree with.
But, heck, there are a lot of laws I don’t agree with, but the majority do.
good luck in trying to persuade people to your point of view.
Allan
If, in the real world, people were only hired and fired based on merit, that might work. But that is not the real world. It is naive to think that it is.
Well gosh Allan you have convinced me. After all it makes perfect sense for an employer to get rid of a well performing employee only to incur more costs in the hiring of a new employee that may not perform as well. What could I possibly be thinking? What possible defense could there ever be against the charge that an employee’s firing must be approved by the government?
I must need to go to a retraining or internment camp in Siberia for wanting employers who take all the risks in a business not to have some ignorant flake second guessing them.
I am not against giving a presumption of regularity to the employer.
Sorry, but that is what you are advocating the moment you say “we should ask and demand the employer prove the reasons for firing someone.” You want someone to have the employer prove the firing of the employee was correct in your mind or the mind of a third party who has absolutely no experience or limited experience in hiring or firing anyone.
My question is: how can we assure this happens?
Your question assumes that the government has a right to interfere or to insure something is “justified” in the workplace to begin with.
You are a long way off from proving that justification.
Why do you think we have the laws in the first place? Because employers were making decisions primarily on the basis of race and then considering qualifications. Perhaps you can argue that, 50 years later, we are past that. I don’t think that is the case. We still have idiots who advocate racial seperation. And some of those idiots are employers.
And, yes, the government does have the right to ensure all of its citizens are treated equally. As I wrote before, the failure to do that will eventually result in civil unrest. It is a matter of good public policy.
Finally, the burden of proof is on the employee to show that the employer acted because of race, not the employer to prove the action was a justifiable business decision.
Why do you think we have the laws in the first place?\
Because legislatures were convinced that they knew better how to run companies and make decisions better than people who actually do. Because someone convinced some elected group of people that they had the right to say to a business owner “we will tell you who and how you can fire someone.”
The government created some non-existent right of employment and armed with that falsehood, deprived the rights of businesses to run their concerns as they see fit.
And, yes, the government does have the right to ensure all of its citizens are treated equally.
Define “equally.” While that may sound like a silly question, people may have equal opportunities, but not equal abilities. If I fire someone because they can’t are aren’t doing the job, that termination is not based on “equal opportunity,” but the outcome of that opportunity.
Secondly, the government itself doesn’t treat people “equally.” Set asides and points for being a part of a certain class or group when awarding a governmental contract is hardly treating people “equally.”
Third, if you want to claim that the government has a right to ensure that all of the people are treated equally, why are there protected classes to begin with? The problem is that the government requires different standards for termination based upon the claims of different class members.
Finally, the burden of proof is on the employee to show that the employer acted because of race, not the employer to prove the action was a justifiable business decision.
You keep saying that, but in reality it doesn’t work that way. I suspect that you have not actually been involved on a case where an former employee claimed discrimination. Once the claim by the employee has been made, it is always up to the company to disprove the claim and to prove they acted in a manner that the government approves of. The government puts tremendous burdens on businesses for record keeping and other disciplinary actions in order to prove their actions were sound (according to the government) while there is no such requirement for the employee.
Even if the charge of discrimination is disproven, the company has still endured costs and lost production in defending a claim that was not true.
I believe that for the most part, people who run a business should be required to hire people on the basis of equal opportunity. If the worker doesn’t work out – for almost any reason – the business owner has the right to end the employment. Instead of that happening, we have seen the rights of business owners gradually reduced and voided until the government runs the business.
1. I submit we have the laws because minorities were discriminated in the workplace for no legitimate business reason. You might claim otherwise, but the record in the 1950s and 1960s supports my position. Yes, at some time the laws should end, but when they should end (or should have ended) is debatable.
2. I cannot define equally. However, I can define discrimination. I can also say that discrimination based upon race, gender, national origin, and age is insidious. As for set-asides and the like, their the purpose of them is to remedy past discrimination. Again the record of this country justified set-asides at one point. Yes, at some time they should end, but when they should end (or should have ended) is debatable.
3. I have litigated a number of discrimination cases (on the side of the employer). In each, the burden was on the claimant to prove discrimination.
I do not dispute that business owners have a huge regulatory burden. That is not an issue. The issue is whether the burden (or any burden) is justified. I am not taking a position on this point. I am taking the position that society has a role in ensuring its citizens are not discriminated against on the basis of illegitimate factors, such as race, age, gender, and national origin.
gitarcarver: Your argument works equally well to say that employers should be free to have policies banning pregnancy and providing for the immediate termination of any worker who becomes pregnant. After all, why should a judge somewhere get to say what kind of work a pregnant worker can do when you, as the owner or manager of a business, obviously know best? Personally, I don’t want to live in a country where that’s legal.
mx, that you don’t want to live in a country where pregnancy “discrimination” is legal means you would have refused to live in the US for most of its existence? In any case, that you personally don’t like it is not much of an argument in favor of the massive regulatory apparatus needed to enforce the law.
But to be clear, yes, I would repeal laws forbidding “discrimination” on the basis of pregnancy. It would have almost no practical effect, as the vast majority of employers would not adopt the sort of policies you fear, and your doomsday scenario would never materialize.
Dem,
So, I take it that you would have no objection to living in a society where slaverly was legal, as it was during most of the first century of the existence of the US?
We have Godwin’s Law for off-the-deep-end Nazi references,but is there a similar law for dubious slavery references?
It would not apply in this case. Unlike about 100% of the time Nazi Germany is invoked, this was actually a legitimate use of a horror as a similar circumstance to what was described, i.e., whether one would want to live in a country where something was legal for a number of years.
Some of us don’t accept the racial-equality model as appropriate for questionable “mental handicaps” that bear a close resemblance to character defects, eg shirking one’s work and lying about it. We also doubt whether drunks should have an equal opportunity to be hired as truck drivers, or suicidal-depressives to be hired as passenger-airplane pilots.
If the government wants to create opportunities for such people,they can offer incentives to employers ready to work with them, rather than playing “Gotcha” on ordinary employers trying to maintain safe and productive conditions for customers and employees.
Hugo: the attitude you take here seems overly dismissive and condescending toward an actual group of people with a real problem. I obviously don’t know every detail of the situation with this particular deputy court clerk, but there are most certainly a number of people who experience severe social anxiety and find that experience debilitating in everyday life. Using scare quotes to question the existence of such a condition and describing someone who allegedly sought to avoid a phobic situation as having “character defects” is incredibly rude.
Imagine referring to an employee who suffers from a physical disability in the same terms. What would you say about a quarry employee with a herniated disc who is accused of taking longer than necessary to do paperwork to delay his return to rock lifting duties? Would he have questionable “physical handicaps” and “character defects?”
Yes, there are plenty of valid areas for debate about the duties of employers, employees, and the government in these situations. The current situation can create near-impossible situations for employers while not doing enough to help employees with disabilities in other cases. But I don’t think dismissing and mocking people with disabilities is a very good starting point for that discussion.