Labor Law: Employee subjected to unwanted birthday party wins $450,000 for disability discrimination & retaliation | Local Business News

Irina Baranova

A Kentucky jury awarded a former employee $450,000 following a lawsuit alleging disability discrimination and retaliation which he says began when company employees held an unwanted birthday party for him.

Former employee Kevin Berling sued his employer Gravity Diagnostics in Kentucky state court claiming that nine months after he started at the company he informed the office manager that he did not want company employees to throw him a birthday party, as was customary for the employees at the company for coworkers.

Five days before his birthday, Berling claimed he told the office manager that he suffered from an anxiety disorder which could result in panic attacks in stressful situations, and that his birthday and being the center of attention was a source of great stress. He claimed to have “respectfully” asked the company to not arrange a birthday celebration for his upcoming birthday.

Despite this request, on Berling’s birthday a lunch time celebration was arranged for him in the lunch room.

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Berling claims to have suffered a panic attack after discovering that the celebration was taking place as Berling was going to take his lunch break. This caused him to leave the office suddenly and spend the lunch break in his car. While in his car, Berling sent a text to the office manager confronting her for failing to accommodate his request that coworkers forgo the standard birthday celebration.

The next day, Berling was criticized by management for his negative reaction to the birthday celebration. Reports are that management told Berling he was “stealing his co-workers’” joy and “being a little girl” but that allegation is not in the lawsuit itself.

The meeting with management caused Berling to suffer another panic attack and Berling asked management to stop talking to him about the birthday celebration. He was then sent home.

Berling texted management apologizing for having the panic attack. The company terminated Berling a few days later, allegedly for the events of the previous week.

Berling claimed that the company failed to provide a reasonable accommodation of abstaining from a customary birthday celebration, and claimed he was terminated as a result of his request for a reasonable accommodation and in retaliation for confronting management about their disability discrimination.

The jury awarded Berling $150,000 in lost wages and $300,000 in emotional distress.

According to reports, the company alleges that Berling’s claim of a “panic attack” were actually incidents of workplace violence, and he was terminated due to violation of the company policy against workplace violence.

The company’s founder and chief operating officer reportedly told the Huffington Post that the verdict sent a dangerous precedent about workplace violence and that her employees, not the plaintiff, were the victims in this case.

Disability is never an excuse for violence or misconduct, but the real issue here is the employer’s failure to honor the most basic request from an employee — not to have a birthday celebration. Employees are entitled to reasonable accommodation. Having a birthday celebration when an employee specifically requests otherwise due to a disability is a failure to accommodate.

In addition to the federal Americans with Disabilities Act, which has caps on damages, Virginia passed the Virginia with Disabilities Act in July 2021 which has no compensatory damages cap and applies to all employers with five or more employees.

Employers should provide all employees with notice of their rights to a reasonable accommodation for a disability. They should train managers to immediately engage in a good faith interactive discussion with employees who request reasonable accommodations.

Employers do not have to remove essential job duties or tolerate lower performance standards, but they must remove any non-essential barriers such as a birthday party which is not essential to the job.

Employers should document all requests for an accommodation and make sure that the employee and employer have a common understanding of accommodations that will be provided and expectations following those accommodations for performance and conduct.

Karen Michael is an attorney and president of Richmond-based Karen Michael PLC and author of “Stay Hired.” She can be reached at [email protected]

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