New Jersey Boss Who Told Grieving Mother To Forget Deceased Daughter
The Superior Court of New Jersey (one step above a Common Pleas court
and one step below New Jersey's Supreme Court), issued a recent employment-law
decision that has made national
For me, the decision is not at all surprising. Yet, I suspect, for many
Americans, it is shocking. Even so, the ruling in Ingraham
v. Ortho McNeil Pharmaceutical [an enhanced version of this opinion is available to lexis.com
subscribers] is in accord with the law of most states in the
In Ingraham, the plaintiff worked for McNeil as an administrative
assistant. In May 2005, her 19 year-old daughter died of cancer. In
mourning the loss of her daughter, she set up a small memorial in her work
area, consisting of pictures of her daughter and a pair of her ballet
About 1.5 years later, HR approached plaintiff and advised that certain of
her co-workers felt uncomfortable with the amount of time she spent speaking of
her daughter, and with the memorial. Her boss soon thereafter told her to
take the memorial down. Plaintiff became upset. He then said that she
"could no longer speak of her daughter because she was dead."
Plaintiff asked her boss if he expected her to act as if her daughter did not
exist, to which the boss replied, "Yes." He invited her to come
to see him behind closed doors if, during the work day, she had an urge to
speak about her daughter.
Plaintiff was very upset, crying and shaking, and left work that
day. She saw her doctor, and not long after had a heart
procedure. She took short-term disability, but never returned to work
Plaintiff filed a lawsuit, asserting she was the victim of intentional infliction
of emotional distress ("IIED"). It is notable, and as
discussed below correct, that she did not file a hostile work environment
Her IIED claim was dismissed because, as the court said, civility is
not required at work, and it is extremely rare for an employer's mistreatment
to rise to the level of IIED. The court does a real nice job of laying
out why such cases are rare. As an employee-side employment lawyer, I may
not like the court's rationale (oh, how much money could I make if I could win
cases by proving that employees were terminated unfairly, or were subjected to
terrible, uncivil treatment at work!); however, it is in accord with the laws
of nearly every state in America.
Why, you may wonder, didn't she file a claim that she was forced to quit work
due to a hostile
work environment? Her boss was callous and cruel, and it is
understandable that what he said upset her greatly, after all.
DID THE BOSS CREATE AN ILLEGAL HOSTILE WORK ENVIRONMENT?
Well, I think the average human being would say they believe the boss's
behavior created a hostile work environment. Without question,
coming to work after that discussion would, at least for a time, make the
average person quite uncomfortable in the work place.
So, if we consider the ordinary, Webster's Dictionary definition of the
words "hostile work environment," then this situation would
However, the term "Hostile Work Environment" is a LEGAL term, with a
LEGAL definition. It is the misunderstanding of this principle that has
led to me spending hundreds of hours on the phone over the years fielding calls
from folks wanting to sue because of their "hostile work environment." It
is this misconception that caused me to entitle my very first Blog entry
"What is a Hostile Work Environment," and that led me, when I first
starting doing YouTube videos, to do my first one called - you guessed it - "What is a Hostile Work
The key to understanding why Mrs. Ingraham did not sue for being subjected to a
hostile work environment is in understanding the LEGAL definition of a Hostile
An illegal Hostile Work Environment is a work environment wherein a
person is made to feel uncomfortable (and worse) BECAUSE of sexual
harassment, or because of his/her age, sex, race, religion, national
origin, disability - or because the employee had taken protected action such as
complaining about unlawful discriminatory or harassing
treatment, seeking Family and Medical Leave, overtime, workers'
compensation leave or making a complaint protected under whistleblower
ILLEGAL HOSTILE WORK ENVIRONMENTS ONLY EXIST IF YOU ARE PROTECTED UNDER
TITLE VII OR IF YOU ARE A VICTIM OF UNLAWFUL RETALIATION
No, that's a mouthful. Allow me to break it down like this.
ILLEGAL HOSTILE WORK ENVIRONMENT DUE TO MEMBERSHIP IN A PROTECTED CLASS
UNDER TITLE VII
It is legal to treat employees terribly, UNLESS the motivation
to do so is grounded in rejection of sexual advances, or dislike of the
* National Origin
* Religious Beliefs
* National Origin
BAD, HORRIBLE TREATMENT ALONE DOES NOT CONSTITUTE AN ILLEGAL HOSTILE
Allow me to discuss some common scenarios about which I receive
inquiries. By way of example, I will call the aggrieved employee
Sue. Bear in mind, NONE of these scenarios constitute an illegal
hostile work environment in Pennsylvania (or in most states). Rather, these
are all examples of legal hostile work environments:
* Sue is disliked/abused because she refuses to play office politics;
* Sue is being bullied at work for no reason other than the fact that her
boss/co-workers are jerks;
* Sue is disliked/abused because she went to the wrong college, or lives
in the wrong neighborhood;
* Sue is disliked/abused because she doesn't go drinking with the girls
* Sue is disliked/abused because she is in a job that her boss would
prefer be filled with her boss's friend/daughter/former classmate;
* Sue is disliked/abused because she complained that a boss/co-worker was
* Sue is disliked because she accused her boss or co-worker of
theft/improprieties/ethics violations (in extraordinarily rare cases such
whistleblowing is protected action);
* Sue is disliked because she refused to quietly accept a bad performance
* Sue is disliked because she is dating her co-worker/boss's
Obviously, this list is not exhaustive but, hopefully, you get the
picture. Once again, it is legal to treat an employee badly at work, very
badly, unless the motivation is the employee's membership in a protected class.
THE FACT THAT YOU ARE A MEMBER OF A PROTECTED CLASS DOES NOT MEAN YOU
AUTOMATICALLY HAVE A DISCRIMINATION CLAIM
But, you say, she was both over 40 and a woman, so she must have a
discrimination claim, right? NO!
The mere fact that you are a minority, over 40, a woman, disabled, etc., is not
enough to prove that you are being treated badly because you fit such
you need some additional proof - which is often the
absence of any other plausible rationale as to why you are being treated
badly. Consider this phone conversation I had a few days ago:
Caller: I want to talk to you about my wrongful termination.
Me: Give me a quick overview.
Caller: I think I was fired because I am African-American.
Me: How long had you worked there?
Caller: 7 years.
Me: Did you recently get a new boss?
Caller: No, same boss for the last 7 years.
Me: Why do you believe then, that they
started disliking you because you're African-American? I mean, what
Caller: Well, I was the only African-American that
Me: Was that true the
entire 7 years you worked there?
Me: So, I 'm a
little confused, they knew you were African-American when they hired you,
and you worked there for 7 years....Why don't you tell me why they said they
were firing you.
Caller: Well, they said I was being fired
because I told a co-worker I would rip off his f***in head and shove it up his
Me: Did you say
that sounds like a legitimate reason to fire someone, don't you think?
Caller: Yeah, I guess....
Now, I don't know what was in the mind of the person who fired this gentlemen.
However, I can say, the employer seemed to have a real good reason for
firing him, and that sounds a death knell for a discrimination case.
WHAT CONSTITUTES ILLEGAL RETALIATION AT WORK?
Retaliation claims are the favored claims for employee-side employment lawyers
like me. After all, it is a lot easier to convince a jury that the boss
fired you because you made a complaint about him/her (most superiors become
angry when subordinates go "over the heads" and register a
complaint), than it is to prove the boss fired you because he/she is a racist,
sexist, ageist, etc. (most people tend to keep such beliefs quiet).
However, there are a limited number of scenarios in which protection against
retaliation in the work place arise. Most commonly, they are as follows:
* You make a reasonable, well-grounded complaint that you are being
treated differently and disfavorably because
of your age, sex, race, national origin, religious beliefs, disability;
* You make a reasonable, well-grounded complaint that you are the victim
of sexual harassment;
* You assert your rights to leave from work under FMLA;
* You seek overtime
to which you believe you are entitled;
* You file a workers' compensation claim.
* You make a complaint covered under a whistleblower statute such as Sarbanes
Oxley (relatively rare claim).
That's about it. Complaints of general mistreatment in the
workplace, no matter how unfair or egregious, do not give rise to
protection from retaliation under Title VII, or any other state or federal
The moral of the story? Picture the playground we all grew up on.
Imagine the workplace is just like that playground.
If the kids called you names because you were skinny or fat, big or
small, poor or rich, handsome or ugly, quiet or loud, smart or dumb,
because you laughed too much or not enough, because you wore clothes in style
or out of style, because you were in a certain clique or not in a clique, etc.
those things hurt real bad. However, such corresponding conduct in the
workplace is legal - just people being people. Yes, you are being
discriminated against (i.e. treated differently from others) for reasons that
may have well been beyond your control. And that most certainly may be
unfair, cruel and morally/ethically wrong. However, Title VII does not
make such discrimination illegal.
However if, on the other hand, playground kids (i.e. boss/co-workers),
"call you names" because you won't have sex, or because of the
color of your skin, your sex, your age, your religion, etc., that would
constitute an unlawful hostile work environment.
But, you say, grownups know not to say these things, they know how to hide such
prejudices. Exactly. Which is why most employee-side employment
lawyers take on very few "pure" hostile work environment
claims. With the exception of sexual harassment claims, they are in
general very difficult to prove in most situations. However, where
an employee who has complained about a belief that such prejudice exists in the
workplace is soon after terminated, a sound retaliation case often exists.
Mrs. Ingraham may have been subjected to very poor, callous, insensitive
treatment at work. However, being the parent of a deceased child is not a
protected classification under Title VII. Hence, however distasteful the
decision of the Ingraham court may be, under well-established employment
law principles, it was undoubtedly correct. While it is reasonable to
believe she may have been entitled to unemployment
compensation, a claim for wrongful
termination simply did not arise out of these circumstances.
Read more articles
about employment law issues at Philadelphia Area Employment Lawyer, a blog
by John A. Gallagher.
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