Employer Liable for Imposing Worker Birthday Celebration

Those who dread that mass of co-workers annually aiming a horrible rendition of “happy birthday” in his or her direction can now take heart.  They are not alone. A Kentucky jury has awarded a man $450,000 for his employer’s alleged failure to prevent a panic attack triggered by an at-work celebration of his birthday.

In Berling v. Gravity Diagnostics, Kenton County Circuit Court No. 19-CI-01631, plaintiff claimed an anxiety disorder protected against disability discrimination by Kentucky law. A lab technician for employer Gravity Diagnostics, he alleged that a few days in advance of his birthday he told the office manager of his condition and asked the company to excuse him from its practice of throwing parties for its employees.

Mr. Berling asserted that on August 7, 2019 the company nevertheless permitted a lunch room birthday celebration for him, triggering an attack and forcing him to abruptly leave the office and spend the meal time in his car.  He further alleged that: ●he texted the manager from there, protesting her failure to accommodate his request; ●management criticized him the next day, triggering another panic attack; and ● the company then terminated him over these events.

Similar to federal and California standards, Gravity Diagnostics was obligated to consider and provide reasonable accommodations to disabled workers and to refrain from retaliating against those asserting such rights.  After a two-day trial, the jury found: ● plaintiff was protected by Kentucky anti-discrimination law; ● he was able to perform the essential functions of his position with or without reasonable accommodation;  and ● he suffered an adverse employment action because of that disability.   The $450,000 included $120,000 in lost wages and benefits; $30,000 in lost future wages; and $300,000 for past, present and future mental pain and “loss of self-esteem.” The judge also ruled Mr. Berling was entitled to his reasonable attorney fees.

The California Fair Employment and Housing Act (FEHA) requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship.

Employers must initiate an “interactive process” when an applicant or employee requests reasonable accommodation for a claimed disability. The employer must also offer to initiate an interactive process when management becomes aware of the possible need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation.

Take-Away:  The interactive process to determine whether reasonable accommodation is feasible should be well documented, demonstrating an individualized assessment of both the job and the specific physical or mental limitations of the individual. As the Berling case demonstrates, consultation with experienced legal counsel is a good idea here.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Know Your Boundaries, New Employer Restrictions on Hiring Notices and Interviews (June 12, 2020)
• Time’s Up, Extended: Longer Three-Year Deadline For Initiating Discrimination Claims (January 10, 2020)
• Preventing Workplace Discrimination – Accommodating Disabilities, Made Simple – New Guidelines Package Available for California Employers (August 24, 2017)

Tim Bowles
May 14, 2022