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Is this discrimination?

Discussion in 'Employment, Education & Disability' started by Sweet_E, Jun 27, 2018.

  1. Sweet_E

    Sweet_E Active Member Donated

    Last week I decided to tell our HR manager of a small company that I have PTSD. I wanted the company to be aware of what was going on with me because there were things triggering me in the environment. I wanted to give them a heads up that I'd be speaking to my therapist and the Office of Vocational Rehabilitation because they might be recommending some accommodations. The HR manager gave me permission to work at a slower pace going forward and up until that point I had received nothing but glowing feedback from management.

    The next business day when both my managers were in the office, I came into work to discover that there was no available computer and phone for me to use, and this equipment is required for me to perform my essential job functions. I clocked in on time but had to wait for my computer and phone to be set up properly so I could log into our systems and begin taking calls. The phone started to ring before the equipment was available so my boss, who was on the other side of the cubicle wall called out to me to answer the phone.

    Shortly after that, the facilities manager, who was assembling some office equipment and doing construction, dropped a metal object close to where I was sitting. It made a very loud clanging noise that startled me to the point of trembling. I walked out for a moment to calm myself and then walked back in. I calmly and politely said to the facilities manager, "I know you can't control the fact that there is going to be noise. But I am easily startled. Would you mind giving me a heads up if you know there is going to be a loud noise?" He responded, "There's going to be noise" as a blanket statement. I then asked to speak to my direct manager and asked her if she was aware of the conversation I had with HR. She said she was aware. After I told her about how the loud noise had rattled me, she gave me permission to take a break (which was about 10 minutes) and then later, to take lunch.

    Later that day I was called into a meeting with HR and two managers to discuss my concerns around my PTSD and the work environment. I was written up for not answering the phone promptly, for "not maintaining a positive attitude in times of chaos" and for not completing other tasks on which I was either not trained or did not have access to the appropriate tools required to complete them. When I asked for an example of when I had a negative attitude, they reminded me of a time when I had to work at a manager's desk and was not permitted to have my own log on or have access to the password. Anytime I had to get up to use the bathroom, go to the printer, or perform other job functions away from that desk, I had to get a manager to type in the password. Sometimes, there was no manager around. I had told the HR manager that one of my triggers was feeling helpless or being blocked from carrying out my responsibilities but in the meeting, they said that I appeared frustrated by the incident and that instead I should have maintained a positive attitude.

    The HR manager also looked me sternly in the eye and asked, "Do you think this is a healthy environment for you to be working in?" I told her, "That's up to me and my therapist to decide. That shouldn't be up to you." Twice they asked me, "Do you think you need to go home for the rest of the day?" I said, "No, I'm perfectly capable of getting back on the phone. I just want to know if it is okay if I can step outside if there happens to be another loud noise and it shakes me up. The HR manager said, and I quote, "You already took several breaks today. We can't have you stepping outside every 5 minutes because that would not be a productive work shift." I reminded her of my strong work ethic and explained that I did not want to have an unproductive day either. I told her that the breaks I took were allowable and that I had been productive. I also said, "To be clear, I am asking you if you would allow me to step outside if there is a loud noise that triggers my PTSD symptoms, as an accommodation for my disability and you are saying, No? Is that correct?" At that point she told me I could step outside.

    They also wrote me up because they claimed that I was not answering the phones and I had to be given direction to prioritize my work multiple times - both verbally and in writing. They dated the incident occurrence as happening two weeks prior to our meeting. What actually happened that day is I was working on a project and a work task that was assigned to me by the consultant who had been training me. I took the initiative to question my manager about the level of importance of the assignments. It didn't feel right to me to working on them. At that point, she verbally told me I should prioritize different tasks- the first time she had given this direction. She stated that she would also send this information in writing to the entire team - because it was new information. Yet, in the meeting with HR, this was written up as an event that indicated under-performance on my part and required corrective action.

    I told them that I found it surprising that I have been given nothing but positive feedback up until now. I was told I was doing an overall fantastic job and that I continually go above and beyond. Then once I told them I have PTSD, they wrote me up for something that happened 2 weeks ago which was really just a leadership communication issue. I told them that this felt like discrimination. I refuted every point on their Performance Improvement Plan document and pointed out how I was not given the required tools or training to accomplish these expectations.

    I'm thinking this is definitely discrimination and I will most likely file a complaint with the department of labor. What do you all think of it?
    420kitty, Sietz, ladee and 1 other person like this.
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  3. ladee

    ladee All the hard work has been worth it ! Premium Member Donated

    Sorry there have no replies to your question. I have nothing to contribute, but am very interested to what others may have to say, and how this works out for you. Know that you are heard, but I have no experience in a situation like this ... Hope you find answers.
    LuckiLee likes this.
  4. Justmehere

    Justmehere Help support myPTSD - more info in Social forum Moderator Premium Member

    This actually isn’t a clear case of discrimination to me. On the surface, it might seem like it... but they have a lot of ways they could defend themselves against a claim of discrimination.

    Have you consulted your Voc Rehab case manager about this? Have you talked to an attorney about the case? I’d suggest doing both, and connecting with a job coach through Voc Rehab and evaluating with them how you are handling requesting and obtaining accommodations, and how you present on the job. They will be able to help give more perspectives to the situation. The Dept of Labor will scrutinize your actions anyhow, so before you file, seek out those that would be more on your side to evaluate your case, and gain more input and advice on how to handle this moving forward.
    Last edited: Jun 27, 2018
    TreeHugger and ladee like this.
  5. Sweet_E

    Sweet_E Active Member Donated

    Thank you! that is very kind of you to respond!

    Thank you! This sounds like a sound perspective. I still have a week or so before Voc Rehab will look at my application. I am working on speaking with a lawyer about SSDI benefits. It may be a long shot that I qualify but I thought it was worth looking into. It's through legal aid which is a benefit through my husband's job. If I talk to one of those lawyers about something directly employment related, I will have to pay for it. I have the name of a good discrimination lawyer but her retainer is $4k which I can't afford! I may try to talk to her for a consultation.

    Wow! I am surprised to hear that this might not be considered discrimination. If you have additional insights or resources, I would love to hear and I think others might be interested as well. I thought this was case book example of discrimination but it's always hard to evaluate objectively if you're stuck in the middle of the situation!
    Last edited by a moderator: Jun 28, 2018
    ladee likes this.
  6. TreeHugger

    TreeHugger For Every Child A Tree Premium Member Generous $250+

    Hi @Sweet_E, what was the reason, or your personal motivation, that you (felt the need?) to tell them about your PTSD? And yes, I've read the first paragraph of your original post. I ask, because you wrote that you've got "glowing feedback". So why tell them? (Please note, that my question isn't a hidden reproach, but an attempt to have a better understanding of your personal motives.) - And is it possible for you to reveal, for how long you've already worked in this company?
    ladee likes this.
  7. Justmehere

    Justmehere Help support myPTSD - more info in Social forum Moderator Premium Member

    It is hard to evaluate objectively when in it! I have filed discrimination cases - two of them - and working through a decision if I will do so on a 3rd, none of them were against employers, but places of public accommodation. This last situation is with a nonprofit I want to keep a relationship with and work with extensively, but is a pretty cut and dry situation where they said, “we are excluding you because you have a disability and we exclude all those with disabilities from...”

    The first one I filed, I thought was a slam dunk. It was instead a lesson in how businesses can defend themselves. ( The second one I one and it was about a whole group of people, and and the regulatory agency found in our favor..)

    Both were very draining and difficult to go through.

    They were extreme situations, change was needed, and yet I’m not sure I would do it again. I have a whole team of people asking me to file on this third situation.... and I’m super reluctant. I’ve worked hard to learn other ways to handle situations where people don’t get PTSD and get kind of weird about it.

    Here are few problems that I can see that may pop up with a claim of discrimination in your situation (and again an attorney can help evaluate this better):

    1.) It’s best to submit any accommodation requests in writing. (By the way, in the future, if you can, I’d suggest not naming the disability or specific symptoms due to stigma, but offer to provide verification of need for the accommodations from a health care provider if they request.) Trying to request accommodations verbally gives an open door to miscommunications between staff and wiggle room for the company to claim you said something else. If it’s in writing that you are requesting 1, 2, 3... then it’s clear and hard to refute what was requested. It’s documented. That’s essential to winning a civil rights claim.

    Part of why I point this out, is that it’s not actually clear to me what accommodations you would like - and that’s likely something they could run with in defense of any claim against them.

    2.) In regards the incident with the construction worker making noise... it’s not actually clear what you would have liked to happen differently and some of your actions did contribute to the situation escalating. Does that make it right what they are doing? No. But it gives them more to work with to defend themselves.

    He dropped the tool. You jumped and very wisely headed out the door to regroup. Well done. Then you came back in. It was wise to validate that you know they can’t control that noise. You verbally requested they let you know when there will be noise. This isn’t a very effective accommodation - asking for advance notice of unexpeceted noise is a pretty hard request to meet. However, he complied right on the spot the best he knew how. Frankly, as someone who has been a supervisor, I don’t actually see that he did anything wrong. I recognize it wasn’t what you were looking for happening, but your well meaning request wasn’t that reasonable to have advance notice of unexpected noise. He knows there will be unexpected noise he can’t control. The best option he had was to tell you right there. He did it.

    3.) From there, you emphasized to him how rattled you were. You were probably trying to get him to take you more seriously.... and I get that. But what happened is you sent the message that your mental health takes more to control and no clear message on a reasonable accommodation they could provide so you could complete your tasks and keep symptoms under control.

    Look at this from a supervisor’s perspective: he had to have a construction worker there, he had gotten word from HR that one of his employees has a mental illness he doesn’t likely understand well, and he doesn’t have a clear plan in writing of what that employee needs from him to do the job. The employee then has mental health symptoms on the job and the employee appropriately stepped out to manage them and came back in. Once back in, that employee makes a request to be asked to be told when there is noise in advance. He complied. He knows there will be unexpected nosies. The employee then emphasizes how rattled they are and that essentially, their mental health symptoms are persisting. And they continue to energetically make clear their mental health symptoms are continuing. He starts to become concerned, and all he knows to remedy the situation is that taking space helps the employee regroup.

    So they offer more time off. I can see why on the surface it’s frustrating and disheartening. But, while you feel frustrated they encouraged you to take more time off to regroup - this is a direct result of you trying to empathize how rattled you were after the noise and how rattled you could be in the future, and the fact that all they knew to do to remedy it was to give you space.

    That’s part of why it’s not clear cut discrimination. They could easily argue they were doing what they could to try to help you regroup. Exactly what you requested. After multiple times off, it would be common to be worried about the job getting done. A simple reassurance that you will show them the job will still get done would have sufficed. Instead, your attitude was a little more adversarial that a simple reassuring comment to them you’ll do the job well as requested.

    In the future, give them a written list of accommodations, where you state “I need xyz accommodations” (perhaps a quieter workspace could be included) to HR in writing. When you need a break, take the break. Don’t come back in and emphasize your mental health symptoms are still at risk of being out of control. People will get weird about that. It’s not fair, but it is the way it is.

    Don’t get into verbal on the spot debates as to if they are doing enough. If a request is not being taken seriously enough, ask for a time to talk later on, when HR or your supervisor has time to think it through and respond thoughtfully.

    Ask for what you need in a much more specific manner. If an accommodation isn’t enough to help you stay regulated, even though they are doing it, try making it more specific or considering other accommodations. Re-assess your request. (Asking for notice of unexpected noises isn’t an effective accommodation. You all experienced that it is not just not very doable or helpful. So problem solve what would be more helpful.)

    In regards to their comments of it being a healthy workspace for you or not.... You somewhat made it their business by emphasizing your specific symptoms not being under control and your request they take further action to remedy. But really, what is their business? Not the details of your condition or mental health, but providing you tools you need to get the job done and mantaining a harmonious work space sp that jobs get done. As someone who has been a supervisor myself, if someone is struggling on the job, and I’ve provided everything they have requested to manage those symptoms, and they are still emphasizing how rattled they are, it’s not completely horrible discrimination for me to ask if it’s the best workplace for them. It’s stepping into tricky ground to go there, but it doesn’t appear they did it with clear intent to harm or discriminate. It’s more of a sign that a supervisor doesn’t know what else to do to help you do your job.

    They don’t have the tools or clear accommodations requests to be able to do that.

    That’s at least one angle they could argue in their defense.

    In my case, because I am sensitive to what it is like to be on both sides of these issues, I would work with the employee to try to figure out solutions. I’d ask them to work with their health care provide and come back to HR/me, whoever the right person would be at the company, with what accommodations they need to have greater success in the workplace and to be able to better do the tasks on hand. I would let hem know, I’m glad to do what is deemed to be reasonable within what the workplace can do. I’ll even ask they keep the details of their disability private, and let’s focus on accommodations and tools to complete the tasks of the job. Many supervisors and workplaces won’t be informed to do this, but it is something that can be worked through in many situations.

    Regarding the passcode issue: it’s easy for them to defend this. They didn’t know that was a trigger for mental health symptoms and they had no written clear request on file that you are provided an ADA accommodation of your own passcode in all circumstances. The managers involved probably had better things to do than enter in the passcode for you, and if there had been an easy way to have IT set up the station so your passcode could work, I would hope they would have done that. They didn’t. So they either suck as effective managers, or adding the log in optionthere was more complex and time consuming than typing it in for you. There is nothing about this that was discriminatory though. It had nothing to do with trying to exclude based on disability.

    Bringing up that a workplace is not providing tools and accommodations you need to perform your job is something that is likely to lead to a review of how well you are doing on the job as is now.

    Is that fair? Yes and no. In order for them to evaluate what is needed for you to perform well, they kind of have to evaluate current performance.

    Should they be bringing up two week old concerns? Hard to say. It depends on how long it takes to generally address concerns. At the end of the day, the feedback wasn’t totally out of nowhere. They would argue to the dept of Labor they have been busy and it takes time to sit down and go over a performance review.

    In the performance review, they requested a more positive attitude when situations like the passcode snaffu and requests to prioritize work. Are those really unreasonable requests? Yes, I know you disagree with that happened in the past. But moving forward, can you meet what they have requested you do?

    When I get triggered on the job, I overshoot on positivity. I know PTSD makes me more tense than even I realize, so while the trigger is being handled, I become queen-of-gratitude. I’m honestly faking it half the time. But this does two things. 1.) people think I’m super duper grateful and they are more likely to say yes to my requests in the future 2.) expressing gratitude, even when totally not feeling it, has been shown to help shift out of depression and anxiety (it’s a CBT technique taught in some forms of trauma therapy.)

    If/when they screw up, it’s not an opportunity to be a grouch or become adversarial - unless you are ready for hem to become adversarial back. Instead, what they would possibly argue to defend a discrimination grievance is that they have an across the board expectation about positive attitudes. They don’t apply it to just people with disabilities but everyone. They would state they would reprimand anyone who handled a administrative issues in this manner.

    The performance review was a performance review. They have given you feedback to change.

    You have your side of the story on the situations that occurred.

    It is a little concerning and a sign of possible retaliation that they are doing the performance review now. I get that. However, a discrimination case for retaliation is extremely difficult to prove. What makes it even harder is that they have some legit things they have included. Other things, you also had the chance to previously express the need for non-disability related tools you didn’t have to do the job. The issue with prioritization of tasks - they gave you the feedback to do it your self and even here, there is an attitude you have of resistance to what they have requested.

    I’d instead write out what you will do to meet their requests. “I hear you, and while I don’t agree with what happened in the past, I will prioritize the tasks moving forward.”

    That will get you further than “this is discrimination!” Their defenses will not continue to come up, and they will instead be more likely to look for positive completion of tasks rather than what they can use to defend themselves.

    Make sense?

    If you want to pursue a retaliation claim, by all means, don’t keep adversarialy announcing it to them. That’s a great way to lose. They will just have even more time to prepare an even better defense, and less emotional motivation to work with you, and more motivation to find legit reasons to write you up.

    Instead, make the accommodation requests in writing, express any concerns about the lack of the requested accommodations in writing, be super duper positive when interacting verbally, (I highly recommend learning NVC - non violent communication techniques - not because they are about violence but because it’s a great way to handle a work conflict that leaves people feeling happy and you getting what you want), and document, document, document everything that you can, and most of all get legal advice on the weight and winnability of your claim.
    Last edited: Jun 28, 2018
    Friday, ladee, Chris-duck and 2 others like this.
  8. Sweet_E

    Sweet_E Active Member Donated

    I think I have a compulsion to go to someone I think I can trust for help when I'm feeling overwhelmed. Some of my triggers are feelings of helplessness, lack of communication, or being blocked from carrying out my responsibilities, or not being able to to count on someone who I want to help me. This is because I counted on my mother to stop the abuse that was happening to me but she didn't. Years later when we talked about it she said she misunderstood me and didn't know I was being abused. She thought I "didn't like being tickled" by my step dad, which was not the phrase I used to describe to her what was happening.

    The HR manager seemed really nice and approachable. And I really liked her and the manager that hired me. I felt like they cared about me. I think I foolishly thought I was doing the right thing by being upfront and transparent with them, and giving them a heads up about what was going on with me. I also have compulsions to take action immediately when I'm in distress. So it was a compulsive thing I did. I was the one who stopped my abuser by taking action in the moment after the abuse continued after I told my mom. It's like I'm repeating what happened to me over and over.

    I have been indisputably great on the phone with customers. When I'm on the phone it's show time. Yesterday, a guy told me that I wasn't the nicest person he's gotten on the phone out of all the places he's called. I get compliments almost every day and the other two in my role do not. But I've been overwhelmed with the unexpected level of chaos in the office. I think I do well with the essential functions of my job - it's the interpersonal interactions with coworkers and having performance anxiety because I push myself so hard. Management kept giving me great feedback, but I was sensing that they were getting annoyed when I would ask questions or ask for help. I've only been at this job for little over a month. And I do not think I have done anything to provoke my coworkers. I think the one lady is just generally negative and intense and the guy who I work with does not like that I go above and beyond. He does the bare minimum, and comments that he will only do so much for what he is getting paid. Although yesterday was the first day that my coworkers confronted me for something - they were I upset that I had sent a couple clients pricing information by email upon request. I had been given permission to do so by management. They thought we weren't supposed to be doing that and said that I was undermining them because they had refused to do this for clients.
    TreeHugger likes this.
  9. Sweet_E

    Sweet_E Active Member Donated

    Thank you for all of this.

    With the maintenance manager who was doing the construction, I have been super grateful and polite. I'm the only one in the office who I hear saying things like, "No problem! I'm grateful for all your doing." As far as I know, he has no knowledge of my PTSD. I tried to ask him to give me a heads up in a very polite way and did not think I made a fuss about anything. I tried to have the attitude of, "This would help me out if you could give me a heads up. If not I'll do my best to adjust." I just told him that I startle easily.

    I think I did do a lot of the things you have said but need to re-read this again a couple times. When they emailed a reiteration of the performance improvement plan, I emailed them back, thanking them for the feedback and said that I had a different perspective and would like to talk to the person at the office of vocational rehab about it. I told them I was looking forward to doing a great job and continuing to maintain a positive attitude.

    I think I can see some of their perspective. I think the feedback was difficult for me to receive because, again, the communication was poor all around and I'm a literal person. I do not think I had a negative attitude at all. I think that I was flustered when I didn't have the tools I needed to do my job. To me, that is something very different that having a negative attitude. I didn't say anything negative, but I may have had a feeling of panic that I did not realize they could sense. I wish I had applied the gratitude practice in that and other moments.
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