Stephen Scott
BridgeTower Media Newswires
Last month we threw a berry-themed first birthday party for my daughter. It was a blast, and the “smash cake” was a hit. But I was shocked at its cost when we could have simply grabbed a Hostess cupcake and likely achieved the same level of joy and sugar crash. Yet as I paid for the smash cake and flipped through Twitter, I saw a headline out of Kentucky that grounded me on the potential cost of a celebration. The tweet informed me of a $450,000 bill associated with a surprise office birthday party gone awry.
In this case, it had less to do with the fact that the employer threw a surprise party than with how it handled the situation – and particularly the fallout. This case presents important reminders for employers about how disabilities should be handled in the workplace – and how a similar fate can be avoided.
The worst birthday party ever?
For the longest time, I always thought my dad’s gift of different kinds of ketchup for a ketchup-themed surprise birthday (okay, I was really into chicken strips as a little kid … and, I guess, still am) would be the mark of the worst birthday party ever. But after reading the facts of this recent case I’ve changed my opinion.
This case stemmed from a surprise birthday party thrown by Gravity Diagnostics LLC for lab worker Kevin Berling. According to his lawsuit, Berling suffered from an anxiety disorder and specifically asked his office manager not to celebrate his birthday party in the office. Coincidentally, the office manager was out of the office on Berling’s big day and his co-workers decided to plan him a surprise birthday celebration. When Berling caught wind of it, he alleged that he suffered a panic attack and spent his lunch period hiding out in his car.
But what happened next was particularly damning for the employer. According to Berling, his managers subsequently called him into a meeting and scolded and belittled him for his reaction. In fact, according to media reports, Berling said he was accused of “stealing his co-workers’ joy.”
This in turn led Berling to suffer another panic attack; he then attempted to de-escalate the situation by clenching his fists. According to the lawsuit, his behavior alarmed the managers, who feared Berling might respond violently. He says they asked him to immediately leave the property. He alleged that the company terminated him several days later.
Berling sued his ex-employer for disability discrimination, and by the time the case went to the jury, the only claim to decide was whether Gravity Diagnostics failed to reasonably accommodate his disability. Ultimately, the jury awarded Berling $450,000 – $120,000 in lost wages and benefits, $30,000 in future lost earnings, and $300,000 for pain and suffering, mental anguish, embarrassment, humiliation, mortification, and loss of self-esteem. At some point soon, the court will tack on reasonable attorneys’ fees and costs, which could considerably increase the final tally that Gravity Diagnostics must pony up.
All in all, that’s a costly payout for a birthday cake and some decorations.
Four things to do to avoid a similar fate
What went so wrong with what was supposed to be a joyous occasion? Employers should consider taking some simple steps in such circumstances:
• Listen to employees and beware of potential disabilities
There was some dispute in this case about whether Berling had explicitly informed his employer about his anxiety disorder. Regardless of what happened here, it’s a good reminder to be attuned to employees who may have disabilities and are seeking reasonable accommodations – even if not specifically couched in those terms.
An employee who expresses significant unease with an office social function may very well be signaling presence of some form of disability such as an anxiety disorder. A request to not throw a party or not participate in a similar workplace function could be construed by a court as a request for a reasonable accommodation if the employee ties such a request to something that is health related. At a minimum, be aware that such an issue could trigger an obligation to engage in an interactive process via further discussion with employees.
• Understand we are in a new, post-COVID-19 era
While many employees are excited about returning to offices, seeing co-workers again, and resuming social interactions at work, beware that this may not be a universal sentiment. In the post-pandemic world, many employees may still be cautious or even fearful about such interactions.
• Train staff on proper ways to handle similar situations
Employees – especially HR folks and front-line supervisors and managers – should be trained to be attentive to such issues. They should know the specific steps to take in response to requests for reasonable accommodations and how to handle potential disabilities. Leaving employees to navigate these issues on their own and figure things out “on the fly” is almost always a recipe for disaster.
• Explore alternatives to immediate termination
Before taking any adverse action against an employee, consider working with appropriate staff to see whether there have been performance issues, disabilities, or any mitigating circumstances. This process should be well-documented and consistent across the board.
In this case, the company alleged that it was concerned about violent behavior by Berling and acted on its “zero tolerance” policy toward workplace violence in making the decision to discharge him.
Depending on the circumstances, removing an employee from the workplace may be the right call from a violence prevention standpoint. Other times, it may make sense to provide a “cooling off” period of paid leave to assess the situation further and determine the appropriate course of action – rather than immediately terminate the employee without having all the facts.
Can we still throw birthday parties?
Does this massive legal loss spell the end of office birthday parties as we know them? Thankfully, no. Cases such as this generate a lot of attention due to their novelty. They also provide a good reminder for all employers to take a step back and contemplate how they would have handled a similar situation, and what they would have done differently. Keeping the points above in mind may help you avoid a similar outcome and ending up with egg (or birthday cake) on your face.
—————
Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.
