Reading yesterday’s post about religious accommodations and Flying Spaghetti Monsters may have had you rolling your eyes like — who is that old guy? Tony Danza?
Just kidding, I know my 80s TV. It’s Corbin Bernsen.
Keeping with the topics of accommodations and eye rolling, I recently read this opinion about an employee with multiple sclerosis, who alleged that her employer violated the Americans with Disabilities Act by transferring her into a position paying $.40 more per hour. And then it created a hostile work environment when, among other things, members of management rolled their eyes at her.
Transferring an employee into a higher paying position is not an adverse employment action.
At a minimum, a plaintiff who alleges ADA discrimination must establish, among other things, an adverse employment action due to her disability. While a transfer to a new position (or to Storage B) could be retaliatory, often it’s not.
School ’em Eighth Circuit Court of Appeals:
A transfer to a new position may be considered an adverse employment action if the plaintiff cannot perform the responsibilities of the new position due to disability. Here, however, Kelleher has failed to offer evidence that she is unable to perform the job of overnight cashier. Kelleher believes she was forced into a new position that she did not want and that she felt would humiliate her…But there is no evidence that she was actually subject to harassment or comments by customers as a cashier; that there was any particular job responsibility she was medically unable to perform; or that management ever determined she was unable to fulfill her new responsibilities.
Well, that and the raise she received.
Also, eye rolls do not create a hostile work environment.
We skipped over this in my law school Employment Law class. (Or, maybe we did, and I was “enjoying” a “katzenjammer” — it just sounds so sophisticated).
Either way, eye rolls and other simple teasing do not a hostile work environment make. Rather, the workplace must be “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the condition of the victim’s employment and create an abusive working environment.” So, while “random looks and eye rolls” may be “unpleasant to tolerate” — sounds like every girl’s gaze in my direction during freshman year of college; I cried myself to sleep a lot that year. But, I showed them. Because, I became an employment law blogger. Oh, God…— they don’t rise to the level of harassment.
You don’t have to wait until the door to HR closes before rolling your eyes.
The mere perception of mistreatment can have an employee thinking lawsuit even when the underlying legal or factual support isn’t necessarily there. So, train your managers and others dealing with requests for accommodation to treat those employees respectfully and take all accommodation requests seriously.
Image Credit: Giphy.com