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!)