Two From The Ethics Alarms “I Don’t Understand This At All” Files…Part I: The Birthday Party Freakout

[Part 2 is here]

Kevin Berling had been working at a medical laboratory, Gravity Diagnostics in Covington, Kentucky for about 10 months when he asked the office manager not to throw him a birthday party because he had a social anxiety disorder. He was freaked out because he had learned that his co-workers had planned a little lunchtime celebration with a cake and gag gifts in the break room. When the party went on as planned, Berling decided to hide in his car and have lunch there.

The next day, Kevin had what he called a panic attack during a meeting with two superiors, who expressed concerns about his behavior. His demeanor, they said later, frightened the supervisors, who sent him home and followed the company’s “workplace violence policy,” de-escalating the situation, removing his access to his office, and sending out security reminders to ensure he could not re-enter the building. Three days later he was fired on the stated grounds that Berling posed a threat to his co-workers’ safety.

 Berling sued the company for disability discrimination and won, with the  concluding that he had been discriminated against because of “a disability.” He was awarded $150,000 in lost wages and benefits and $300,000 for suffering, embarrassment and loss of self-esteem.

What? Berling was an at-will employee, and could have been fired for virtually anything or no reason at all. He had not informed the company that he had a “disability,” and though disability law frequently makes no sense to me, I find it impossible to believe that an employer is engaging in illegal conduct when one chooses not to hire someone who is unstable, or when one fires an employee after clear signs that his behavior will disrupt the workplace.  I haven’t done the research, so the precedents may be as crazy as the people companies are forced to hire, but still—Berling’s  supervisors testified that he had “clenched his fists, his face had turned red and he had ordered his supervisors to be quiet in the meeting. “They were absolutely in fear of physical harm during that moment,” Julie Brazil, the founder and chief operating officer of Gravity Diagnostics, said on Saturday. “They both are still shaken about it today.”

If Berling gets nearly a half-million dollars because he acted like a good candidate to go “postal,” I see a big payday in the future for –what would be the right word? Well, you know. And what do you think would have been the result if the company had taken no action with Berling and he had snapped, coming in the next day with gun and shooting the birthday party organizers? I’d sure take the lawsuit by family members of the victims for a contingent fee.

 And I say this as even sympathizing as a former victim of a terrifying surprise birthday party my mother once organized. To make sure I didn’t suspect anything, she scheduled the thing days before my birthday. She asked me to get something in our creepy basement, and when I was half-way down the stairs, a mob of people leaped out and screamed “Happy Birthday!” I fell down the stairs. See, when it’s your birthday and that happens, you quickly think: “Oh! A surprise party! These are my friends!”

When it’s not your birthday, you think, and I did: “I’m going to die.”

 

20 thoughts on “Two From The Ethics Alarms “I Don’t Understand This At All” Files…Part I: The Birthday Party Freakout

  1. I should have noted that the ADA requires employers to make “reasonable accommodations” for workers with disabilities, and not having a stupid office birthday party is hardly a big deal. But the birthday party wasn’t the problem: at worst, it was a single issue once a year. If that was the jury’s thinking, then they were nuts.

    • My guess is that the jury was swayed by the fact that the guy went out of his way to ask them to cool it with the birthday shenanigans, and they ignored him, then fired him for reacting the way he warned them he would. Attending stupid office parties has no bearing on whether you can do your job, so firing him for reacting poorly to a completely avoidable situation that he tried his best to avoid seems like a bit of an overreaction.

      As a guy with a long career in IT, I’ve worked with lots of antisocial weirdos. If everybody who seems “like a candidate to go postal” is fired, modern society would cease to function in about three days…

      • But they didn’t fire him for his reaction to the party. They fired him for his behavior in the meeting with them about his reaction to the party ,getting so upset, clenching his fists, shouting at them to shut up. How can anyone trust an employee who acts like that with a supervisor?

        • I can imagine deciding this case either way, if I was on the jury, depending on how that meeting unfolded. If the managers came in to the meeting hot and accusatory, knowing he’s got social anxiety so severe that he’d rather hide in his car than eat birthday cake
          he’s going to look a lot more like a sympathetic victim. To my way of thinking, that meeting was unnecessary and provocative. He told them in advance that he didn’t want to participate in their birthday party (at the same time notifying them of his disability – that’s probably the key moment of the whole thing), and they wanted to give him grief about it after the fact anyway. They could have simply noted that Kevin doesn’t like parties and moved on. He’d been there nearly a year; it’s virtually certain that by that time they would have cottoned to the fact that he’s an odd duck and already made some concessions to his mental state.

          An article I read about this the other day mentioned that the fist-clenching, for example, was explained as a coping technique he’d been taught for trying to deal with stressful situations. I don’t know if that’s something that works (seems like it’d be prone to misinterpretation, so on that basis alone, I wouldn’t think it would be recommended), but it’s at least a plausible explanation. Did he explain this at the time it happened? Did they know about his disorder before they even hired him? Seems like a difficult thing to hide during job interviews, if it’s that severe. There are a lot of factors that could make him seem pretty sympathetic to a jury, and make the company seem out of line here.

          I can see both sides of this case being plausible: maybe they were genuinely afraid of him, or maybe they were just looking for a way to get rid of an employee that turned out to be a disruption to the workplace. I suspect it comes down to him having a better lawyer who knew how to present him to the jury as a victim. I do wonder how he handled himself in court, if his anxiety is really that severe. He must’ve gotten some really good coaching before the trial.

          • Good analysis. I think the key on the other side is the absence of transparency. His didn’t inform the company of his disability when he was hired. I think that’s potential grounds for dismissal of an at-will employee right there. So then supervisors meet with him to discuss this new information, which is relevant to how he will or can function in his job. At the meeting, his behavior genuinely worries and alarms them. They didn’t sign on for a ticking time bomb, and don’t have a legal obligation to “accommodate” a staffer who may be dangerous.

          • Yes, I agree. Ultimately, none of this had anything to do with what he was hired for (I assume he works in the lab and likely doesn’t manage anyone or interact too much with others). They extrapolated that he was a scary dude, but then again his job description and contract likely did not list “must be social at birthday parties” either.

            If my assumptions about his job are correct he also chose a role that meant he didn’t have to confront his social anxiety issues at work often, if at all. In that case he was managing his ‘disability’ appropriately, it was his managers who created an unnecessary stress for him completely extraneous to his work (or the companies work at large), which is a dick move and shouldn’t be grounds for losing his job.

            • Is anyone going to comment on what actually happened? Apparently not. He was not fired for not wanting a birthday party. He was fired for behaving in a disturbing manner in a meeting with supervisers, who inquired about his reaction to the birthday party. Since he didn’t attend the party, his reaction to it is irrelevant to the issue. The issue is whether employers can, and might have an obligation to, dismiss employees who demonstrate anti-social tendencies and a lack of self control

              • Yes, I understood that part. But his anti-social tendencies and lack of self-control came out in a meeting on a subject that was still extraneous to his actual job. Had he behaved like this in meetings relevant to his job description then I could see a basis (and maybe he has). But from what we can see his managers created a situation that he had to handle that was completely outside of his job description and contributed nothing to his work or the company’s work. If he wasn’t able to manage it well it still has nothing to do with whether he was a competent employee for the job outlined in his contract.

                As Jeff described above, anti-social weirdos still have skills relevant to the work place. Judging their fitness for work based on things that have nothing to do with their job or the company’s work is unjust.

                • Wait a bit, though: EVERY meeting with superiors is a meeting about the job, and one’s demeanor in such meetings can’t vary according with the topic at hand. I have been the supervisor, and I have been the one called on the carpet. Once I was pulled into a meeting by my boss, an idiot, who expressed “concern” over my work as a stage director, which he said “took away” from my concentration on my duties in my job. I clearly, calmly, but firmly told him what I did when I wasn’t being paid by the organization was none of his business, and that I objected to being asked about it. I then noted his charity work, that he had dragged staff into helping with, and said he was engaging in rank hypocrisy. After asking, “Anything else?” I left. Oh, he fired me eventually as soon as he found an excuse, but that meeting couldn’t be it. Now, if I turned red, sated clench my fists and told him to “Shut up,” he could have, and should have.

                  • I tend to agree, but I still contend that the managers instigated the confrontation by having the meeting in the first place. They knew why he didn’t want to attend the party, because he went out of his way to explain it to them before the party ever happened. What was the point of the meeting? If I tell my boss that I won’t be attending a party that has nothing to do with my job, and then I don’t attend, what’s to discuss? It feels to me like the meeting wasn’t well-intended, or at the very least was handled poorly on both sides. The jury, who had much more information than we do, seemed to agree.

                    • Again, though: such meetings are part of having a job, whether they are justified or not, and every employee, with or without a disability, is bound to behave appropriately in them.

  2. I had a neck injury in college, and had to go through the whole accomodations process firsthand. Federal law creates a right to NOT disclose a disability, unless it materially impacts a critical aspect of the job applied for. Even then, employees can ask for a reasonable accommodation, which must be granted unless it materially impacts the job. A company would not be required to hire someone requiring a cane or wheelchair for a warehouse job that requires moving boxes all day, for instance.

    The ADA specifically states there is no obligation to disclose there is a disability motivating the request for accommodation. The employer is free to modify the terms of employment based on the request alone, or it could ask for substantiation of the request, which may require disclosure of aspects of the disability.

    Social anxiety is a mostly invisible disability, but it does not necessarily impact day-to-day functions based on how well managed it is. When a situation came that the employee feared may impact his ability to perform his job, he requested an accommodation, i.e. to NOT throw a party. Though not legally obligated, he appears to have disclosed that he feared a panic attack.

    The supervisors then ignored the request for accommodation.

    Now, being able to act civilly among one’s coworkers is a critical aspect of any job. It is possible he could be dismissed for not being a good fit by refusing to attend functions. That had not yet been shown, however. He had made a request to be excused, and was given no opportunity to perform his job with the accommodation. Directly ignoring the request created an immediately antagonistic situation where his rights were curtailed.

    Now it is also possible his behavior the next day with his supervisors warranted immediate termination. The supervisors could have reasonably feared for their safety. However, that conclusion would have be based on the facts of the situation. The jury appears to have ruled that the facts presented to that effect were not convincing.

    It appears he made a fairly reasonable request, and it was ignored. The bosses possibly gave him a hard time, he reacted poorly, and they pushed him out using a zero tolerance policy for reasons that the jury did not accept. They said it was policy, their hands were tied; the jury found it discriminatory behavior. If I had access to the NYT article or the trial arguments, I could better evaluate if that decision were reasonable.

    • On Fortune, it’s worded differently which adds a little better context.
      After informing the office manager of his concern about not wanting a party,

      1) The team threw a surprise party at lunch.(he was ambushed) He became upset and had to leave and finish his lunch in the car, they carried on. (Now the meeting to discuss his behavior makes more sense – his leaving was probably a pretty public display.)

      2) In the meeting the following day to discuss his reaction, “He said he was ‘criticized’ for the way he acted and ‘this confrontation triggered another panic attack’.” (so it was probably pretty ‘adversarial’.)

      Ramblings:

      So my take on this (my opinion) is that they pissed him off pretty good by surprising him. I’d like to know the office manager’s age. I bet it’s a 22 year old girl who’s thinking “he’s just being difficult. Just surprise him, it’ll be fine.” Well, it wasn’t fine and it’s the type of quick anger thing that really sticks in your head for at least a week, particularly because you tried the proper way to not let this happen. Having your conveyed wishes so disrespected can result in a similar disrespectful act – i.e. storming out.

      Given that this was still fresh and made him irate, having a meeting about it the next day certainly would make anyone feel criticized. Particularly if they aren’t acknowledging that your reaction was reasonable and expected to an act that they won’t acknowledge as wrong and the inciting incident. Being misunderstood and gaslighted in a subordinate position, well that’s a bad feeling of bottling up and not being able to communicate your true feelings that would probably send me into an anxious frenzy.

      I probably would not have wrote this 2.5 years ago, but I write it now because 2 years ago, I experienced my first true panic attack, and it was life-altering. I would do anything to avoid having a panic attack, which usually means I employ the IDGAF attitude to everything.

      I think we’d have to look at the transcript to understand who knew what and when. We know he told the office manager, but that’s not his supervisor and possibly even the people who threw the party. If the office manager kept that nugget of information close to the vest, then his reaction was probably very surprising to the team.

      Then you have management hold a meeting “to discuss his outburst”. To me, it sounds like this meeting was not intended to understand, but to correct behavior. I’d like to know if he told these people of the condition and order of events or if this was a one-way discussion where he bottled it all up and was attempting to cope in silence. So the managers see him visibly upset but don’t know why, but they think he’s volatile and they send him home.

      Then HR fires him for “workplace violence” and no one understands why he acted that way and if they did, they might act differently.

      One thing to keep in mind, they threw him a birthday party. They wanted to throw him a birthday party. They felt comfortable enough to think gag gifts would go over well. They thought he was a person they could joke around with and were comfortable with him. That’s the baseline. The Office Manager is the villain that sparked the ethics trainwreck.

  3. I disagree Jack. In the story I read it was the management who generated the party as they routinely did. The employee asked them, the managements, not to do so before the day of the party expressing his reason. They, the management refused to abide by his reasonable request. They violated his right to privacy as well as his dignity. They then blamed him and terminated him. I would have doubled his award

  4. My understanding from the employment lawyer in my last office is simply, “You can fire an at will employee for a good reason, or for no reason, but not for a bad reason.” This guy’s lawyers must have convinced the jury their client was fired for a bad reason.

  5. I would like to see whether the company had tolerated similar outbursts or behavior from others in the past, or at least not fired them. My experience is that there is almost always a comparator in these jury verdict discrimination cases that was not disabled and that was treated better.

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