E9: They Say It's Your Birthday

In this episode, host Thom Jennings and attorney Kathleen Jennings discuss a recent case involving an employee that sued his employer because of a birthday party. The nationally publicized case resulted in a hefty award for the employee and involves many elements discussed in previous episodes, including reasonable accommodation, office communication, and terminating employees with dignity.

We also learn that Kathleen loves cake.

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law. Inner Popular Cover Your Assets blog. If your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:31):
Hello everyone and welcome to Cover Your Assets, the Labor and Employment Law Podcast. That's a mouthful. You know, I got a message the other day from Spreaker that said your title is too long. What do you think about that, sis?

Kathleen Jennings (00:47):
You know, I don't think it's the length of the title. I think it's the message that it presents.

Thom Jennings (00:54):
Well, there you go. So I think that the title length is perfectly fine and of course, people that are looking for podcasts about labor and employment law, you found it. This is episode, I believe it's number nine. Our numbers are going up. So we do appreciate the support and people that are out there listening today. I think we have, maybe this is a first that we're gonna actually talk about a story that was in the news and very recently, now we're recording this in April of 2022, right around Easter time. And I'll give you a little bit of background on this particular story. There was a gentleman in Kentucky who, he was about celebrating birthday and I guess there was some tradition at his workplace that said, we have this big birthday party and gathering and everything like that. And he said, I don't wanna have a birthday party.

Thom Jennings (01:46):
And they went ahead and had the birthday party anyway. And you might think, oh, you know, what could possibly happen that's worth talking about because some employees decided to have a birthday party. And in fact, our resident expert and attorney Kathleen Jennings and I were talking about I thought on some level this could be similar to if you go to a restaurant and like, I think Applebee's comes to mind cuz that's kind of place where the wait staff comes over and sings happy birthday to you. And sometimes that's unwanted, but what kind of real harm can come from that? Well, in this particular case, the party really upset the gentleman and he had a panic attack according to the court records and the newspaper stories and the accounts. And again, I think we should make sure that we say that, you know, what we're discussing today is it's what's in the media.

Thom Jennings (02:37):
We weren't there, so this is secondhand information, but from what we can gather, that's what happened. They had a panic attack. Now, what is a fact is that this gentleman was awarded $450,000 by a jury. So all kidding aside, if you look at, if you listen to the episodes in our podcast and the purpose of our podcast, the reason it's called Cover Your Assets is because employment lawsuits can be incredibly costly. Now, we'll just start with a pretty basic question Kathleen, $450,000 in terms of an amount does that seem fairly high? Does it seem fairly common, at least in your experience when it comes to lawsuits of this nature?

Kathleen Jennings (03:26):
Thom, one of the problems of trying employment cases to a jury, at least from the employer side, is you never know what a jury is going to decide is, first of all, whether there's been a violation of the law. And then secondly, if they find a violation, what they find to be reasonable compensation, I'll also note that in addition to that $450,000, the employer probably spent six figures on their own attorney's fees as well. And if this case was brought under the Americans with Disabilities Act, then the attorney for the plaintiff, the fellow who filed the lawsuit, can also apply for attorney's fees as the lawyer for the prevailing plaintiff. So this is not the end of the pain for the employer, all because of a birthday party. Now in the media has made it sound almost comical. You know, a guy sues because his employer had a birthday party. But as you and I have discussed, there's a lot more to the story than that and, and a lot more things that are worth discussing about how this matter could have probably been handled differently and maybe even in a way that would've avoided a lawsuit altogether.

Thom Jennings (04:48):
Yeah, and I think there'll be obviously be some conjecture because as I mentioned, we weren't there, we're, we're basing this conversation on the best information available. But I agree with you, I think even myself not being an attorney, I certainly can see some points in the process that the employer could have handled it differently and staved off the lawsuit. I mean, there was a series of missteps and in fact, if, you know, we discussed this before we went on air, if you go back through our archives, there's a lot of topics that we've already covered that relate to this specific incident and how an employer could have been proactive and not wound up with what you're saying. If this is a $450,000 lawsuit, potentially a a million dollars cost to the employer, which that's a lot of money no matter how you look at it, even if, even if there is some insurance that kicks in, I mean, that's a lot of money and it's a lot of bad publicity as well.

Kathleen Jennings (05:41):
Lot of bad publicity. And you know, it's, it's unfortunate. I I represent employers. I think it's unfortunate how the case has been reflected in the media. I really feel that the media is, is making a joke of it. It's similar to how we heard all about the woman who dropped the hot cup of coffee in her lap and got a bunch of money. And so now it's, you know, oh, employee, employee got upset about a birthday party at work and got $450,000. You know, this is America, this is the legal system. Well, yeah, it is. But the reason that this employee sued wasn't just because he asked his employer not to have a birthday party and they had one anyway. I mean, who doesn't love a good birthday party? Well, some people don't. And this gentleman, from what I understand from the, the court records specifically asked his employer not to have the birthday party in his honor because he suffered from an anxiety disorder and he was concerned that being the center of attention at that kind of event would trigger a panic attack.

Kathleen Jennings (06:57):
And so he quite reasonably asked for the party not to go forward. Now I have read that the person who spoke to forgot that he had this conversation, he or she had the conversation and that's why the, the party went forward. Well, that's a problem right there. If, if an employee makes a request to you, to someone in management that has something to do with what we discussed in an earlier podcast. This is really a, a type of reasonable accommodation. And this one is pretty easy. You know, if if someone finds that a birthday party or something that's not even related to productivity at work directly is, is a problem and they don't want it, what's wrong with respecting that wish? I mean, yeah, maybe other employees look forward to the cake, the cupcakes we used to have cupcakes. Cupcakes are fun unless you're on a diet, but that's probably a topic for a whole other podcast.

Kathleen Jennings (08:06):
But this employee made a reasonable request. They went ahead and did it. He did have a panic attack. And then to make matters worse, his employer disciplined him and terminated him for having a bad attitude toward the birthday party. Now, this was not, from what I understand, and again this Thom has pointed out, this is from the court records, we weren't there. But this would be the evidence that would be submitted to the jury and for the jury to, to listen to and make their decision. If the reason that the employee was upset was because he had a particular condition that he had brought to the attention of the employer and he had requested an accommodation for that condition, the employer ignored that request and triggered the, the bad consequence that happened, then you are just putting gasoline on the fire by then disciplining this employee for making that quite reasonable request. So it's probably something that will become a hypothetical in law school labor and employment classes. No doubt. I, I don't know. What are your thoughts on this Thom? As a non-lawyer?

Thom Jennings (09:25):
Well, I, you, I I I think that you hit, you hit right on the head and we discussed the, I mean, most people that McDonald's lawsuit comes to mind and that people think of that lawsuit, they think frivolous. And if I remember correctly, I don't think the woman actually received the money. I think there was originally a a, an award in her favor, but I don't even think she ever received the money. But it still became a legendary court case. You, oh, well of course coffee's hot, you burned your legs, what do you expect? You know, why should you get any money for that? Why should you even sue for that? But the case, you know, there were so many other nuances to it. I mean, the woman had third degree burns in her, on her legs and all these other things that come into play.

Thom Jennings (10:03):
So in this case, again, to me it seems like a whole series of missteps that you can focus on whatever part of the process you want. So if you just focus on the one aspect of it, which is like, okay, so we'll just, we'll just take it at face value. So there was a guy at work and he, he, he, you know, we have birthday parties and we threw a birthday prairie for him and he threw a fit. What an idiot. And then he sued us and he won. That's the kind of, to me that's kind of the lock. The, well the water cooler conversation I guess is the old stereotypical term for it. That's the conversation you're gonna have from people. Now again, I think it goes back to what you said reasonable. How reasonable is it to just make a simple request to say, you know, I don't want a birthday party. That's, that's really reasonable. I mean, that's not like somebody asking to bring their pet snake to work. It's not like asking them to, you know, tell, saying that you have to have a, a recliner to work in or whatever. And even some stuff that's really not that difficult, like having a workstation where you need to stand it set a sit because of a physical restrictions, a again, it goes, goes

Kathleen Jennings (11:09):
Out. Sure. Or what about the vegans? Let's talk about the vegans, let's talk about the diabetics for birthday parties. You know, what if they request specific cakes or specific baked goods and they don't get those?

Thom Jennings (11:22):
Yeah, and I, and I think that part one is the part that, that maybe people are missing. And I don't know if this is a situation where it was just used in the defense or how true it is, but the office manager, according to reports, the office manager was out of town, so they did the party unbeknowns to her or him. I don't think they, they say what gender they are, but it's like, okay, this goes back to communication, simple communication. If the office manager knows that this employee doesn't like birthday parties, it's now you're an attorney. So I'll ask this question, which I think I already know the answer. If an employee doesn't like birthday parties and you're the office manager and tell the other employees, are you violating any confidentiality or are you just expressing wishes?

Kathleen Jennings (12:12):
I think probably the best way that this could have been handled might have been just an email to employees saying, we're not doing any birthday celebration this month or this week, or not even get into why or that the employer requested it, I think, or you just don't have it at all. As long as this HR person had communicated to whoever it was that staged the party, that that was the first breakdown in communication. Why wasn't that desire communicated to the person who went out and got the cake or did whatever gathered the employees in the break room that should have happened. And then after that, either don't say anything and just don't have the party or a quick email that just says, Hey, we're not, we're not doing any parties this week or, or anything like that and leave it at that. You don't have to make a big deal out of it.

Thom Jennings (13:16):
Yeah, and I think simple solution is that maybe you craft a policy where, whether it's part of the onboarding process or if there's like a committee that handles the birthday, you just simply go to that particular employee and say, do you want a party or would you like something else? Now I was, I worked for an employer where we had an option, we would could either get a $25 gift card to, I think it was a grocery store or a coffee shop or whatever, or we'd have a small gathering with some cake and pizza and things like that. Some people wanted to have the party with their coworkers and on lunchtime and some people took the gift card. But either way, you know, you were given a choice in that matter. It, it sounds like, again, part of the issue here, it's not even the, the, the birthday party itself.

Thom Jennings (14:00):
What it comes down to is that the employer said on some level that we didn't listen to you, that we did not honor and respect what I think, I don't know, it's a fairly simple request. I don't want party. And, and again, like, and you know, it comes down to it said, said on the surface people must, like you said, well who don't like a good birthday party? Well, who cares? Who doesn't like it? If they don't like it, they don't like it. Just, just, just don't do it. So really to me, the issue isn't the party in and on some level it's maybe not even the panic attack. I think really the, the first place that this could have been avoided is simply making sure that your HR person, office manager, anybody in management is communicating with everyone. And not only communicating, but listening.

Thom Jennings (14:48):
Cuz this I think was a little bit of a listening thing too. Absolutely. It may have been been a situation where the employee just said, you know, Hey, listen man, I I don't like birthday parties. Okay. And the office manager might have said, oh, who don't like birthday parties? Come on Kevin, you know, let's, let's, we'll go ahead. You know, Kevin told me that he doesn't like birthday parties, but I think he's just exaggerating. And it, and it just kind of went from there. And it, and it's sad because I think that this this guy who sued, I mean obviously it, it caused some distress because going through a lawsuit ain't easy. You know, it's, it's not fun. No, it's not fun for anybody. I'm sure that, that he was, he was scrutinized and examined, cross-examined and rec cross-examined.

Kathleen Jennings (15:28):
Absolutely. Yes. So, but it was enough. Some, it, it upset him enough to wanna seek out an attorney and wanna pursue this, this action in court. And you're absolutely right. It's, it's not easy going through a lawsuit, especially something like this where he was probably questioned about his mental health issues, his history, his medical history. There's a lot of personal information that a plaintiff is asked about in a lawsuit. And, and on the other hand, the company has to go through it too. That means that they have to spend time and money pulling together discovery documents, making their folks available for depositions as well. It's, it's as usual, the lawyers are the ones that probably come out on top, which is why some people out there don't always love us until they need us. But in this case also, the plaintiff got some money out of it as well. And I don't know that we can necessarily begrudge in that under the circumstances that we are aware of.

Thom Jennings (16:39):
Right. And let's, let's move on to another part of this story too, which I think is, is important as well. And so I'm getting this from the New York Times story that it's, it's not real extensive, but it certainly gives at least an overview of the facts. So what appeared to happen next is that he was upset about the party and then two supervisors met with him. The meeting did not go well. They said that because of the meeting, they, they had the meeting with him because of his, the, this is the quote, I guess from the quote from the court documents, somber behavior, which money was probably wandering around the office moping. And he worked for a medical diagnostic firm, by the way, which we didn't mention earlier. And so you decided to confront the employee cuz they're upset about this particular situation. I, I mean, I'm, I'm almost thinking you, you might have been better kind of letting it go and letting it work itself out.

Thom Jennings (17:33):
But they said that in the course of this meeting, the employee exhibited some behaviors and was very upset and they said that he was potential, they felt that he could be potentially violent or because he was violent in the meeting, but I don't know the specifics for that. And then, then they terminated him, they sent him home that day and then they, they terminated him. So in terms of that meeting, what would be your suggestion as far as how you would handle, let's say again, an employee has a situation, doesn't necessarily have to be a birthday party, they feel it like they haven't been listened to, they're wandering around the office moping. Cuz I mean, somber just to me means moping. I mean, you're gonna pull 'em in and confront 'em. I mean, what good is really gonna come out of that, to be honest with you,

Kathleen Jennings (18:19):
<Laugh> Well, yeah, and, and you know, the thing is it's, is you have the two supervisors, which yeah, is, is what we counsel employers to do. You wanted to have a witness to every meeting, so more than one person. But this is probably the kind of situation where a well-trained human resources person would be able to hopefully engage in some active listening and possibly some deescalation of this employee's emotions. You know, if this person was getting agitated, then the best thing to do is to end the meeting, perhaps send this person home, let them cool off, and let's try it again when everybody's feeling better. But to turn around now and, and you know, what we're looking at here is classic retaliation because here's someone who made a request for arguably an accommodation and then the day after that he's terminated. So timing right there not good for the employer.

Kathleen Jennings (19:29):
And then the reason for the termination is, is pretty weak. Now, if the employee had in fact attacked somebody or really threatened violence, you know, we'll have to see what the circumstances were, but this person has already put the employer unnoticed that he does have some anxiety disorder issues. So the employer needs to act accordingly and, and act with care and, and be empathetic to the struggles of this person. I think what we've learned during the pandemic is that there are a lot more people out there, a lot more employees out there struggling with mental health issues than we were ever aware of. And employers, when they are aware of these issues, do have a duty to reasonably accommodate them when they can't. And anybody who wants to learn about the accommodation process go back to our podcast where we talk about reasonable accommodation, but mental health disorders can qualify as disabilities under the Americans with Disabilities Act. So employers need to treat them accordingly and, and listen and be empathetic and, and try to work with these, these folks.

Thom Jennings (20:48):
Yeah, and I I think that you also brought up a point that's very important in that sometimes supervisors have a very different skillset when it comes to deescalating an employee. And on some level, you know, you have, you have a supervisor employee relationship just by its nature it can be kind of confrontational. So when you do have a situation with an employee who's upset, you really need to make sure that you have the right person in place to handle that situation, that has this skillset, like you said, to be an active listener to, you know, figure out what what the root of the problem is. Again, like you said, two people can be in the room, maybe the supervisor is, is in there, but the HR person is the one that leads the meeting because many of these HR professionals are, are trained in, you know, skills that are similar to like a social worker, somebody that can actually yeah.

Thom Jennings (21:42):
Work through a situation as opposed to, again, a supervisor as a leader, they're not necessarily gonna be empathetic or sympathetic, you know, their role is to, Hey man, we need, we need to get the job done. I gotta make sure you got the right team in place. I don't have time for this somber person who is upset about a birthday party. So I think that the employer, whatever their policy was in terms of handling a disgruntled employee, which I think would be the best way to describe this particular employee, post birthday party, probably should make sure that they, you know, have policies and procedures in place to, to react to these situations in a better way

Kathleen Jennings (22:20):
Or just the training. I've conducted training for companies where along with sexual harassment training and lawsuit avoidance training, we have talked about deescalation and things like that because there are a lot of angry people out there and it's good to be able to know how to handle those people in a way that keeps everyone safe.

Thom Jennings (22:47):
Yeah, absolutely. And in this case, again, it really goes back down to, and, and we did have a a not to kind of beat a dead horse on the previous episodes, but again, as we talk about it, every one of these episodes, so many of these cases involve three, four, or five different scenarios. And that's why it's important that you're up on, you know, the current laws and, and trying to, you know, just, just being up on the type of situations that could come up based on anything, whether it's a pandemic, the employment situation out there, whatever the case. But in this particular case, it really came down to, even though you mentioned the retaliation, it came down to the fact that the anxiety disorder was considered a disability and that was the basis of the lawsuit. So he was awarded 150,000 was in lost wages and $300,000 was for suffering, embarrassment and loss of self-esteem.

Thom Jennings (23:40):
And I, and I think, yeah, I mean you listen to terms like that, like, oh, you know, the guy was, was embarrassed and he maybe, you know, he just doesn't have self-esteem. And I mean, no matter what your opinion is, you can believe that that doesn't amount to much and that makes this individual wimpy. It doesn't matter what you think, it ultimately matters what a jury thinks. So you, I think, as an employer, probably the, the advice, and I'm sure you'll agree with me, is that you gotta take all these situations seriously and you gotta make sure that, that you're, that you're trying to, to think about the potential pitfalls of, of a policy that may seem, hey, having birthday parties for employees. Is that a bad policy to have? No, that's a great policy to have, in fact, and if anything, it's, it's a good thing to have, but still, you gotta be prepared for these situations where it could upset somebody because I don't know about you sis, but I've learned in my time on this planet, there's plenty of things out there that I just didn't think were controversial or wouldn't upset anybody, and they do.

Kathleen Jennings (24:44):
That's true. That's absolutely true. And some of it is just a matter of putting yourself in somebody else's shoes and understanding where they're coming from because we're not all alike and we all have different backgrounds and we have to respect that. It comes down to, I guess probably really the, the message here is to respect your employees, respect their beliefs, respect their shortcomings, and you know, don't act in a way that you're basically slapping 'em in the face.

Thom Jennings (25:21):
Yeah. And, and you know, we've spent a lot of time beating up on the employer, but again, I think in defense of the employer, I don't think there's anything wrong with having a birthday party policy. I think, again, it can be a good thing. And I don't think that this was a case of clear malice where the employer was doing something awful. I think that's why a lot of people sympathize with the employer, and I certainly do. I mean, I don't, I don't think that they were, but I, but again, I think we're, where we saw these missteps along the way, the lack of communication with the office manager to the other employees, which could have been avoided by an email, like you said then the meeting, having it with two supervisors instead of having an HR or person that either had training in deescalating, potentially volatile situations with employees. That was a, a misstep there. And again, just, you know, not looking at policies and being a little bit more flexible in terms of, you know, what's the alternative? Could we offer a gift card instead of a party or, or those types of things to prevent this from happening in the future.

Kathleen Jennings (26:26):
I like the gift card idea, although I like cake more. I think that this situation also can help us to learn about a bigger issue, which we can talk about in a later podcast because it's important and it's about embracing diversity, embracing the diversity, the cultural backgrounds of your employees, understanding that everybody's different, understanding that not everybody wants a birthday party. Not understanding that even when you're planning extracurricular activities for your company, going out bowling sounds fun. Unless maybe you have an employee who's in a wheelchair who's not able to bowl or has some sort of neuromuscular problem where they can't bowl. So you have to understand where your employees are coming from, understand their backgrounds, understand their needs, and try to anticipate when you come up with some of these policies, what are the ways that we can make sure that everybody's included and that we make our policy, we make our parties, we make our outings as inclusive as possible.

Thom Jennings (27:42):
So like a situation that I have right now, I mean, I'm a teacher during the day. I have a student who is Muslim and this month is Ramadan. So during the, the month he doesn't eat. So during lunchtime I sent him off to the gym so that he can not be around the other kids that are eating. And we were actually planning a party at the end of the month with pizza and wings. Now, if I was gonna have a party if with pizza and wings during the month that he was fasting, I, I don't, I just don't think that would be a good idea. But again, like you said, it's all about awareness, recognizing diversity, making little adjustments we're, you know, even though I don't personally fast for the month of Ramadan, I still have to respect the people that do.

Kathleen Jennings (28:26):
Absolutely. I think that's a great point, Thom.

Thom Jennings (28:29):
All right. And with that, we will wrap up and I thought this was a great episode. Certainly if anybody out there has any other questions regarding this or any of the other topics, but again, please go back into the archives cuz we've discussed a lot of these topics on previous episodes and we, you know, I, I don't think, it may seem like we'll be repetitive when it comes to certain stuff, but as I said, every one of these cases involve so many different legal aspects to it that it's important that we kind of keep discussing 'em so that everybody else can cover their assets. And that's, that's the ultimate goal of the podcast. So let's finish up with contact information for you and and then a thanks for everybody for listening.

Kathleen Jennings (29:12):
Well, I could be contacted at my email address, which is kj j wim law.com.

Thom Jennings (29:20):
All right, fantastic. And again, thank you everybody for listening. We've got plenty more podcasts come from and please subscribe, share, and thank you for everybody that's been listening. Our Workplace Romance episode is still numar. No. And the reason is because we use the term sex police. Sex police, which now we've used it in this episode. So hopefully that will increase it, it as well.

Kathleen Jennings (29:41):
So that should help it. Great.

Thom Jennings (29:42):
Absolutely. All

Kathleen Jennings (29:43):
Right. Well Thom, as always, I enjoy our talks.

Thom Jennings (29:47):
All right, fantastic. Well, thank you very much. And again, thank you Warren for listening to cover your assets.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.