This recent case is not the first case like this. In one recent case the Eleventh Circuit Court of Appeals (controlling in Florida) held that an employer took reasonable care to prevent disability-based harassment by promulgating and disseminating an anti-harassment policy and complaint procedure, and the employee failed to take advantage of that complaint procedure to report the supervisor’s conduct. In that case, the Faragher/Ellerth defense shielded the employer from liability for any hostile work environment the supervisor’s conduct created. Cooper v. CLP Corp., 679 F. App'x 851, 855 (11th Cir. 2017).
In another case, an employee filed claims against his employer for disparate treatment, hostile work environment, and unlawful retaliation. The lower court granted summary judgment in favor of the employer but the appellate court reversed on the claims for prima facie disparate treatment and hostile work environment. With regard to his disparate treatment claim, the employee produced direct evidence of his supervisor's discriminatory motive, which was his hatred toward the employee as a disabled Gulf War veteran with a speech impediment, and how the employee suffered adverse employment decisions, including the loss of a newer van and cell phone, and an increasingly hostile work environment laden with bullying and mockery of his Mexican-American heritage and disabilities. With regard to his claims for hostile work environment, he produced evidence that coworkers openly mocked his speech and that his supervisor expressed his hatred for the employee’s disabled Gulf War combat veteran status.
One of the examples given was that the supervisor “hated the fact that [the employee] was receiving disability pay,” commenting, “I will tell you what I hate[:] people that served in the first Gulf War for five days and claim a disability”; and the supervisor added, “I served and I got crap.” Alonso v. Qwest Commc'ns Co., 178 Wn. App. 734, 740, 315 P.3d 610, 614 (2013)
The above cases remind Florida employers to take seriously any mocking or taunting or bullying of employees based on PTSD status.
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After nearly a year of litigation, and paying their defense lawyers, the employer agreed to settle the lawsuit by paying the employee $75,000 and entering into a consent decree in March 2018.
Can a supervisor make fun of an employee with PTSD?
The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), which found cause to determine that the employer violated the Americans with Disabilities Act (ADA), which prohibits disability discrimination and harassment. When the employer failed to settle the case with the EEOC, the EEOC filed a lawsuit in federal court, EEOC v. Mine Rite Technologies, LLC, Civil Action No. 2:17-cv-00063-SWS.
An employee was a veteran with post-traumatic stress disorder (PTSD). During his employment, he was harassed by his supervisor because of his condition. Specifically, the supervisor repeatedly referred to the employee as a “psycho,” including in front of his coworkers. The supervisor also made comments about “Psycho Thursday,” because that was the day of the week when the employee attended therapy sessions at a Veterans Administration facility to treat his PTSD. When the employee felt that this harassment became intolerable, he believed that he had no option but to quit in order to avoid further abuse.
In addition to the monetary relief, the employer agreed to a three-year decree which includes an injunction against future discrimination based on disability and a requirement that the company create and implement equal employment opportunity policies. The decree also requires the employer to train its employees and to provide the employee with a letter of apology and a letter of recommendation.
The above “facts” were taken from EEOC press releases as well as court filings made in the lawsuit.
EEOC spokespersons stated, “A veteran should never be ridiculed because of PTSD,” and “This man gave his all for this country, came back suffering, and was brave enough to get help from the Veterans Administration for his condition. Our veterans deserve better than this. Furthermore, mental health is a significant problem in this country, and such mistreatment only makes things worse,” and “No employer should ever allow harassment of our veterans who served this country simply because they are getting the care they need and deserve.”
This case reminds Florida employers that to ensure that their workplaces are free from discrimination and harassment, and that unlawful harassment because of a mental health condition will not be tolerated by the EEOC.