Monday, May 23, 2011

The Mah Nishtanah of Freedman v. D.C. Department of Human RIghts

Is there anything about Freedman v. D.C. Department of Human Rights that distinguishes it from most other "Title VII" cases?

Well, I am not a legal scholar. I am not an expert in employment law or in any area of the law. I do, however, want to point out what seems to me to be distinguishing features of an employment discrimination case in which I was involved as plaintiff several years ago.

Here is a brief summary of the facts: I worked as a paralegal at a law firm. I believed that I was a victim of harassment throughout my tenure. After about three and one half years of trivial incidents that indicated to me that I was a victim of subtle harassment, I decided to ask to my employer to be placed in a private office or be promoted to different position. In support of my request for transfer and/or change in office assignment I described several incidents to the employer that suggested to me, at least, that I was a target of abusive behavior by coworkers and other staff. A few days later I was advised by the employer that it had decided to terminate my employment because there was a "lack of fit" between me and other employees. I filed a complaint with a state human rights agency alleging that I was harassed by staff and ultimately terminated by the employer because of my sexual orientation. The employer's Response stated that the employer had determined that I suffered from mental illness that caused me to falsely believe I was a target of abusive behavior in a non abusive environment and denied that it was aware of my sexual orientation. The agency decided in favor of the employer.

Protected Status

I believe that the issue of my protected status distinguishes my case from many if not most employment discrimination cases. Protected status can be conferred under state and federal anti-discrimination statutes based on sexual orientation, race, gender, national origin, religion and age. In the case of race and gender, the employer will not be able to make a credible argument that it was not aware of an employee's protected status. In the case of religion, well, I suppose an employer might be able to credibly deny it knew an employee was a Muslim, for example or deny -- in the case of a charge of discrimination based on national origin  -- that it knew that an employee was Latino. In the vast majority of cases an employer will not be able to deny that it knew an employee was a woman or an African-American. Again, I'm no expert but I suspect that in most "Title VII" cases, the employer will not deny it was aware of the employee's protected status.

Reason for Termination

I was terminated based on the employer's reported determination that it had learned that I was not suitable for employment by reason of mental illness. I would venture to say that in most "Title VII" cases the employer does not defend a wrongful termination complaint on these grounds. I suspect that in most cases the employer will say that the employee was lawfully terminated because his or her work was sub par or that the employee had engaged in bad conduct.

It is probably true to say that my case falls into a minority of "Title VII" claims in that the employer was able to credibly--credibly, to a limited extent -- say that (1) it was not aware that I was a member of a protected class (and that I was not harassed for that reason) and that (2) it alleged that I was not mentally fit to work.

I am intrigued that the two features that distinguish my case from many other Title VII cases from a legal standpoint is that it raises two issues of personal identity. In fact, I believe that, from a psychological perspective, the matter was an especially egregious assault psychologically because it concerned two issues of personal identity.

First, the employer denied my sexual identity or perceived sexual preference. Second the employer created a false identity that I suffered from severe mental illness. These are two assaults on my psychological identity: who I am, who I believe myself to be, how others perceive me, and how I perceive others perceive me. The psychological consequences of my job termination differ from the outcome for most Title VII claimants.

My job termination was not a simple change in my employment status from employed worker to unemployed worker. My job termination (and consequent litigation) resulted in an assault on core issues of my psychological identity on two fronts: on my sexual identity (legally speaking, my protected status) -- including my meaning for significant others -- and on my mental status, whether or not my perception of my work environment was real or deluded (legally speaking, whether I was subjected to unlawful harassment).

Erikson wrote: "The conscious feeling of having a personal identity is based on two simultaneous observations--the perception of the self-sameness and continuity of one’s existence in time and space and the perception of the fact that others recognize one’s sameness and continuity. Ego identity on the other hand concerns more than the mere fact of existence; it is, as it were, the ego quality of this existence.  The ego is the conscious mind of the individual. Ego identity then, in its subjective aspect, is the awareness of the fact that there is a self sameness and continuity to the ego’s synthesizing methods, the style of one’s individuality, and that this style coincides with the sameness and continuity of one’s meaning for significant others."

I note incidentally that as recently as May 2009 the outcome of litigation that ended more than a decade earlier continues to haunt me.  In May 2009 I underwent a psychiatric assessment.  I was adjudged to suffer from psychotic mental illness in part because of events that occurred many years earlier. The psychiatric assessment chart states: Client has a J.D. and an LL.M. Client has not worked as an attorney but has worked as a paralegal. Client's paranoia and delusions led him to believe he was being harassed at work. He made a complaint that was investigated. Client was fired after the investigation contradicted his reports of harassment. (Notice that a third party has relied on a court determination that in fact found that the thoroughness of the employer's investigation was not even material to the conclusion that the employer reasonably and lawfully found I was not suitable for employment!)


Gary Freedman said...

Kafkaesque indeed!!

Gary Freedman said...

Ironically (or uncannily) I quoted the passage from Erikson in an autobiographical study I wrote (The Caliban Complex)-- on the employer's premises -- only seven months after I started working at the firm, in October 1988.

Little did I know that the issues of personal identity I wrote about in October 1988 would relate to the psychological consequences of my job termination three years later, in October 1991 (and that these same issues would haunt me for decades to come!).

Gary Freedman said...

Here's what I wrote in October 1988:

The subject’s fractured and diffuse identity poses significant difficulties for him in his interpersonal relations since a firm sense of identity is indispensable to an individual’s ability to relate to others, to establish meaningful and enduring relationships. Where sense of identity is impaired, object relations will be impaired. Erikson has written: “True ‘engagement’ with others is the result and test of firm self-delineation. Where this is still missing, the young individual when seeking tentative forms of playful intimacy in friendship and competition, in sex play and love, in arguments and gossip, is apt to experience a peculiar strain, as if such tentative engagement might turn into an interpersonal fusion amounting to a loss of identity, and requiring, therefore, a tense inner reservation, a caution in commitment. Where a youth does not resolve such a strain he may isolate himself and enter, at best, only stereotypical and formalized relations.” Erikson, E.H. (1959) Identity and the Life Cycle (Norton: 1980), quoted in Brenman-Gibson, M. Clifford Odets: American Playwright - The Years from 1906 to 1940, at 641 (Atheneum: 1982).

Erikson emphasizes the need for an identity that is confirmed by others. "The conscious feeling of having a personal identity is based on two simultaneous observations: the immediate perception of one’s self-sameness and continuity in time; and the simultaneous perception of the fact that others recognize one’s sameness and continuity.” Erikson, E.H. (1959) Identity and the Life Cycle (Norton: 1980, quoted in Roazen, P. Erik H. Erikson: The Powers and Limits of a Vision, at 43-44 (The Free Press: 1976). Erikson implies that the individual with a composite identity, not easily defined and from which identity recognition is withheld by others, will tend to isolate himself to preserve what is felt to be precarious.

Yes, I was years ahead of my time!!

Gary Freedman said...

D.C. Superior Court found:

As to petitioner’s argument that DHR failed to consider evidence regarding possible fabrication, harassment and/or retaliation, the Court has reviewed the record herein and finds that DHR considered the arguments now raised by petitioner and properly rejected them. It is not the role of this Court to weight the evidence and substitute its judgment for that of the agency. Moreover, neither DHR nor this Court need “determine whether or not defendant adequately investigated the charges of . . . discrimination’ before discharging plaintiff.” Evans v. Bally’s Health and Tennis, 64 FEP Case. 33, 38 (D.Md. 1994). See also Bradshaw v. Brookdale Hosp. Medical Ctr., 1993 Westlaw 289435 (E.D.N.Y. 1993) (even if defendant’s investigation resulted in an inaccurate determination, plaintiff offers no evidence that defendant acted with discriminatory intent). Consistent with the holdings of these cases, the Court concludes that any allegations regarding the adequacy of the firm’s investigation cannot negate the credibility of the respondent’s asserted reasons for the termination.

Granted, an inadequate investigation by an employer is not in itself evidence of "discriminatory intent."

However, there is unequivocal evidence of discriminatory intent in the employer lying to DHR about it's knowledge of my protected status. Doesn't such evidence of discriminatory intent raise a legal question about the innocence of inadequacies in the employer's investigation?

A man claims he killed his wife accidentally (he did not form the intent to kill). He lies to the police about an affair he was having with another woman. Doesn't that lie raise substantial questions about whether he killed his wife accidentally?

Gary Freedman said...

In the above hypothetical, observe my seeming identification with Nicole Brown Simpson and her "wrongful death."