Written on behalf of Peter McSherry
Employee awarded nearly half a million dollars in damages after an unwanted birthday party
An American employee was awarded nearly half a million dollars in damages for lost wages and emotional distress after he was dismissed due to events that took place related to an unwanted birthday party.
The New York Times recently reported on the remarkable jury award coming out of the state of Kentucky in the United States of America. While workplace law is quite different in that jurisdiction compared to Canadian workplace law, the facts of this case raise interesting legal and practical questions about accommodating mental health disabilities in the workplace.
Employee with Anxiety Disorder Experiences Panic Attack in Workplace
The employee at the heart of this dispute is Kevin Berling, a lab technician who had been with the company just ten months. The company in question is Gravity Diagnostics, a medical laboratory company based in Covington, Kentucky.
Mr. Berling had an underlying medical condition that is described in media reports as an anxiety disorder. He disclosed this condition to his manager and requested that no events be planned around his upcoming birthday as he anticipated this would exacerbate his condition. The office manager agreed to respect his request.
However, while the office manager was away from the office, a colleague organized a birthday celebration. When Mr. Berling learned of the party, he experienced a panic attack and spent his lunch break in the car to avoid the celebration.
Confrontation with supervisors leads to dismissal
The following day, two supervisors met with Mr. Berling to discuss the incident. While reports of what occurred at that meeting differed, Mr. Berling’s account was that he was confronted during the meeting and accused of “stealing the joy” of other employees. This confrontation led to a second panic attack. The company’s position was that during this meeting, Mr. Berling became violent or exhibited behaviours that indicated he might resort to violence at a later date.
What is not in dispute is that the supervisors sent him home, removed his access to the building and advised security he was not permitted to return.
Mr. Berling commences lawsuit alleging disability discrimination
One month following his dismissal, Mr. Berling brought a disability discrimination lawsuit. The matter was heard before a Kentucky jury in a two-day trial this year.
At the conclusion of the trial, the jury determined disability discrimination had taken place and awarded Mr. Berling $450,000 in damages. The damages included $150,000 for lost wages and benefits and $300,000 for emotional distress including suffering, embarrassment and loss of self-esteem. At the time of writing, the judge had not yet entered a formal verdict and the company has indicated in media reports that it intends to challenge the verdict.
Workplace mental health and workplace safety issues remain top of mind
One of the employer’s defences in this case was around how it perceived the employee’s behaviour. In several media statements, the employer described the employee as exhibiting signs of violence. (Note that the jury, which heard the evidence in the case, appears to have concluded the employer had little reason to believe the employee was violent). If this perception is reasonable, it may be grounds for discipline up to and including dismissal. However, employers should be wary of relying on stereotypes about persons with mental health disabilities and simply assuming they are violent because they have mental health issues.
In media statements, the company has indicated supervisors followed security protocols for workplace safety risks. However, it is unclear from these statements and the case itself, if the company had adequate training and protocols in place for mental health first aid, mental health accommodations and inclusion for persons with disabilities.
Employers have a duty to take proactive steps to prevent workplace violence. However, employers must also be mindful not to be discriminatory in their workplace violence policies or practices.
Mental Health Disability Law in Ontario Workplaces
While this case took place in a different jurisdiction, this is a good time to refresh some key components of the mental health disability laws that apply in Ontario workplaces. Here are some key pieces to remember:
- The Ontario Human Rights Code provides protection against discrimination on the basis of disability – it does not distinguish between physical and mental disabilities and includes real, past or perceived disabilities;
- Employers have a duty to accommodate employees so they can fully participate in the workplace, examples include:
- Flexible hours;
- Providing a leave of absence for treatments;
- Modifying job requirements; and,
- In some cases providing an alternate role.
- Employers also have a duty not to discriminate or harass an employee based on his or her mental health disability, which includes taking steps to prevent, investigate and address any harassment by co-workers.
In Ontario, it is rare to have a jury trial like the one in this case, however, there are a number of venues where employees can bring these types of claims. The Ontario Human Rights Tribunal was created specifically for human rights related disputes and civil courts like the Small Claims Court and the Superior Court can also hear these matters. These civil courts usually involve the case being heard by a judge, however, parties do have the right to request a jury trial in Superior Court, which can be advantageous in some circumstances.
In terms of awards, it is uncommon in Canada to see verdicts over $400,000 in employment-related disputes. There is no legal cap on damages, however, the laws around damages are different than in the United States. To date in Ontario, one of the highest awards from the Ontario Human Rights Tribunal provided for $170,000 in damages for the applicant’s injury to dignity, feelings and self-respect in that matter that related in part to a violent sexual assault.
Contact Guelph Employment Lawyer Peter A. McSherry for Experienced Advice on Discrimination in the Workplace
If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your rights and your options to remedy the situation.
The Ontario Human Rights Code prohibits discrimination and harassment based on race, colour, ethnic origin, religion, gender, age, disability, sexual orientation, marital status and family status.
At Peter A. McSherry Employment Lawyer in Guelph, I have represented clients in all areas of employment law since being called to the Ontario Bar in 1997. I provide each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact me today to schedule an initial consultation by calling my office at 519-821-5465 or by e-mail.