Is Telling an Employee to Forget Her Dead Daughter Proof of a Hostile Work Environment?

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Sep 21, 2011

By John A. Gallagher

The Superior Court of New Jersey (one step above a Common Pleas court and one step below New Jersey’s Supreme Court), issued a recent employment-law decision that has made national news.

For me, the decision is not at all surprising. Yet, I suspect, for many Americans, it is shocking. Even so, the ruling in Ingraham v. Ortho McNeil Pharmaceutical is in accord with the law of most states in the country.

In Ingraham, the plaintiff worked for McNeil as an administrative assistant. In May 2005, her 19 year-old daughter died of cancer. In mourning the loss of her daughter, she set up a small memorial in her work area, consisting of pictures of her daughter and a pair of her ballet slippers.

Civility is not required at work

About 1.5 years later, HR approached plaintiff and advised that certain of her co-workers felt uncomfortable with the amount of time she spent speaking of her daughter, and with the memorial. Her boss soon thereafter told her to take the memorial down. Plaintiff became upset. He then said that she “could no longer speak of her daughter because she was dead.”

Plaintiff asked her boss if he expected her to act as if her daughter did not exist, to which the boss replied, “Yes.” He invited her to come to see him behind closed doors if, during the work day, she had an urge to speak about her daughter.

Plaintiff was very upset, crying and shaking, and left work that day. She saw her doctor, and not long after had a heart procedure. She took short-term disability, but never returned to work again.

Plaintiff filed a lawsuit, asserting she was the victim of intentional infliction of emotional distress (IIED). It is notable, and as discussed below correct, that she did not file a hostile work environment claim.

Her IIED claim was dismissed because, as the court said, civility is not required at work, and it is extremely rare for an employer’s mistreatment to rise to the level of IIED. The court does a real nice job of laying out why such cases are rare.

As an employee-side employment lawyer, I may not like the court’s rationale (oh, how much money could I make if I could win cases by proving that employees were terminated unfairly, or were subjected to terrible, uncivil treatment at work!); however, it is in accord with the laws of nearly every state in America.

Why, you may wonder, didn’t she file a claim that she was forced to quit work due to a hostile work environment? Her boss was callous and cruel, and it is understandable that what he said upset her greatly, after all.

Did the Boss create a hostile work environment?

Well, I think the average human being would say they believe the boss’s behavior created a hostile work environment. Without question, coming to work after that discussion would, at least for a time, make the average person quite uncomfortable in the work place.

So, if we consider the ordinary, Webster’s Dictionary definition of the words “hostile work environment,” then this situation would likely qualify.

However, the term “Hostile Work Environment” is a LEGAL term, with a LEGAL definition. It is the misunderstanding of this principle that has led to me spending hundreds of hours on the phone over the years fielding calls from folks wanting to sue because of their “hostile work environment.”

It is this misconception that caused me to entitle my very first Blog entry “What is a Hostile Work Environment,” and that led me, when I first starting doing YouTube videos, to do my first one called – you guessed it – “What is a Hostile Work Environment.”

The key to understanding why Mrs. Ingraham did not sue for being subjected to a hostile work environment is in understanding the LEGAL definition of a Hostile Work Environment.

An illegal Hostile Work Environment is a work environment wherein a person is made to feel uncomfortable (and worse) BECAUSE of sexual harassment, or because of his/her age, sex, race, religion, national origin, disability – or because the employee had taken protected action such as complaining about unlawful discriminatory or harassing treatment, seeking Family and Medical Leave, overtime, workers’ compensation leave or making a complaint protected under whistleblower statutes.

Remember: Illegal Hostile Work Environments only exist if you are protected under Title VII or if you are are a victim of unlawful retaliation.

No, that’s a mouthful. Allow me to break it down like this.

If you are  a protected class under Title VII

It is legal to treat employees terribly, UNLESS the motivation to do so is grounded in rejection of sexual advances, or dislike of the employee’s:

  • Age
  • Sex
  • Race
  • National Origin
  • Disability
  • Religious Beliefs
  • National Origin

Bad treatment is not an illegal hostile work environment

Allow me to discuss some common scenarios about which I receive inquiries. By way of example, I will call the aggrieved employee Sue. Bear in mind, NONE of these scenarios constitute an illegal hostile work environment in Pennsylvania (or in most states). Rather, these are all examples of legal hostile work environments:

  • Sue is disliked/abused because she refuses to play office politics;
  • Sue is being bullied at work for no reason other than the fact that her boss/co-workers are jerks;
  • Sue is disliked/abused because she went to the wrong college, or lives in the wrong neighborhood;
  • Sue is disliked/abused because she doesn’t go drinking with the girls after work;
  • Sue is disliked/abused because she is in a job that her boss would prefer be filled with her boss’s friend/daughter/former classmate;
  • Sue is disliked/abused because she complained that a boss/co-worker was lazy/mean/late/incompetent;
  • Sue is disliked because she accused her boss or co-worker of theft/improprieties/ethics violations (in extraordinarily rare cases such whistleblowing is protected action);
  • Sue is disliked because she refused to quietly accept a bad performance evaluation;
  • Sue is disliked because she is dating her co-worker/boss’s ex-boyfriend.

Obviously, this list is not exhaustive but, hopefully, you get the picture. Once again, it is legal to treat an employee badly at work, very badly, unless the motivation is the employee’s membership in a protected class.

Protected classes don’t mean you have an automatic discrimination claim

But, you say, she was both over 40 and a woman, so she must have a discrimination claim, right? NO!

The mere fact that you are a minority, over 40, a woman, disabled, etc., is not enough to prove that you are being treated badly because you fit such profile. No, you need some additional proofwhich is often the absence of any other plausible rationale as to why you are being treated badly. Consider this phone conversation I had a few days ago:

Caller: I want to talk to you about my wrongful termination.

Me: Give me a quick overview.

Caller: I think I was fired because I am African-American.

Me: How long had you worked there?

Caller: 7 years.

Me: Did you recently get a new boss?

Caller: No, same boss for the last 7 years.

Me: Why do you believe then, that they started disliking you because you’re African-American? I mean, what changed?

Caller: Well, I was the only African-American that worked there.

Me: Was that true the entire 7 years you worked there?

Caller: Yes.

Me: So, I ‘m a little confused, they knew you were African-American when they hired you, and you worked there for 7 years….Why don’t you tell me why they said they were firing you.

Caller: Well, they said I was being fired because I told a co-worker I would rip off his f***in head and shove it up his a**.

Me: Did you say that?

Caller: Yes.

Me: Well, that sounds like a legitimate reason to fire someone, don’t you think?

Caller: Yeah, I guess….

Now, I don’t know what was in the mind of the person who fired this gentleman. However, I can say, the employer seemed to have a real good reason for firing him, and that sounds a death knell for a discrimination case.

What constitutes illegal retaliation at work?

Retaliation claims are the favored claims for employee-side employment lawyers like me. After all, it is a lot easier to convince a jury that the boss fired you because you made a complaint about him/her (most superiors become angry when subordinates go “over the heads” and register a complaint), than it is to prove the boss fired you because he/she is a racist, sexist, ageist, etc. (most people tend to keep such beliefs quiet). However, there are a limited number of scenarios in which protection against retaliation in the workplace arise. Most commonly, they are as follows:

That’s about it. Complaints of general mistreatment in the workplace, no matter how unfair or egregious, do not give rise to protection from retaliation under Title VII, or any other state or federal laws.

Why the workplace is like the playground

The moral of the story? Picture the playground we all grew up on. Imagine the workplace is just like that playground.

If the kids called you names because you were skinny or fat, big or small, poor or rich, handsome or ugly, quiet or loud, smart or dumb, because you laughed too much or not enough, because you wore clothes in style or out of style, because you were in a certain clique or not in a clique, etc., those things hurt real bad. However, such corresponding conduct in the workplace is legal – just people being people.

Yes, you are being discriminated against (i.e. treated differently from others) for reasons that may have well been beyond your control. And that most certainly may be unfair, cruel and morally/ethically wrong. However, Title VII does not make such discrimination illegal.

However if, on the other hand, playground kids (i.e. boss/co-workers), “call you names” because you won’t have sex, or because of the color of your skin, your sex, your age, your religion, etc., that would constitute an unlawful hostile work environment.

But, you say, grownups know not to say these things, they know how to hide such prejudices. Exactly. Which is why most employee-side employment lawyers take on very few “pure” hostile work environment claims. With the exception of sexual harassment claims, they are in general very difficult to prove in most situations. However, where an employee who has complained about a belief that such prejudice exists in the workplace is soon after terminated, a sound retaliation case often exists.

Mrs. Ingraham may have been subjected to very poor, callous, insensitive treatment at work. However, being the parent of a deceased child is not a protected classification under Title VII. Hence, however distasteful the decision of the Ingraham court may be, under well-established employment law principles, it was undoubtedly correct.

While it is reasonable to believe she may have been entitled to unemployment compensation, a claim for wrongful termination simply did not arise out of these circumstances.

This was also published on attorney John A. Gallagher’s Employment Law 101 blog.

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