Defending against Specious Claim?

September 30, 2005 7:35 AM

My mother is involved with a very upsetting situation at work, and I don't know what to advise her. She's the subject of a complaint of discrimination.

She is not at all a racist, for the record. Basically what happened is that she asked her office-mate not to wear cologne because it exacerbates her allergies and allergic asthma (they have no windows.) He wouldn't stop, so she went to her supervisor, who also made the request. He filed a discrimination complaint based on the fact that he is a black man and he feels she wouldn't have made the request unless she was racist. Also he says her tone was 'disrespectful.'

I didn't think this was a big deal until today, when they all met with the union rep (this is a school district) who told her that she must bring a note from her doctor to substantiate her claim of allergies, and that even so she might not clear herself.

So my question is, should she get a lawyer? How seriously should she take this? Clearly it's absurd on its face, but...who knows?

posted by miss tea to work & money (34 comments total)

IMO, If you have to ask... Yes, consult a lawyer.
posted by yeoz at 7:51 AM on September 30, 2005

Let her try talking to the guy alone. Let them have a meal together and she tries to work out the situation with him. Would she be willing to do that?
posted by markesh at 7:53 AM on September 30, 2005

She probably should have talked to a lawyer before she said anything about the cologne.
posted by mischief at 7:55 AM on September 30, 2005

I wouldn't meet with the guy alone. He might claim that she said something offensive or disrespectful and she'd have no witness.
posted by Morrigan at 7:56 AM on September 30, 2005

Just because it is absurd on its face does not mean that it won't spend a little bit of time in court. She should consult a lawyer - a good one, at that. A lawyer skilled in employment law will probably make short work of this situation, whereas others may not be able to put a stop to it quickly.

Also, the cologne/perfume-exacerbates-allergies/asthma scenario is not uncommon and a lawyer familiar with the jurisdiction will be able to help her assemble exactly the types of documentation needed to support her claim.
posted by MrZero at 7:56 AM on September 30, 2005

"Let her try talking to the guy alone."

That is probably the absolute worst thing she could do now.
posted by mischief at 7:57 AM on September 30, 2005

On preview: don't meet with him alone. The guy is clearly litigious and every encounter should be with neutral third-parties at hand, and documented regarding date/time/nature of meeting.
posted by MrZero at 7:58 AM on September 30, 2005

Does the school district have an ombudsman? If so, this may not have to get to the lawyer stage.
posted by Morrigan at 7:58 AM on September 30, 2005

My gut response is that she does need a lawyer, as everyone involved in this mess will probably have one and it would leave her at a disadvantage if she's the only one naked.
posted by unrepentanthippie at 7:58 AM on September 30, 2005

Let her try talking to the guy alone.

Absolutely not. Talk to a lawyer before doing anything or meeting with anybody else.
posted by monju_bosatsu at 8:00 AM on September 30, 2005

His complaint is probably against the school district, not your mother and the supervisor, officially. The school district will have a lawyer. I would advise that she find out where the school district stands on the issue - if they plan to defend or settle. The decision may partly hinge on if she can produce the doctor's note or not. More fact gathering at this stage - what is he claiming - hostile work environment? That's a larger issue than this incident. Find out how her employer plans to handle the situation, etc. If they are thinking settlement, she may need a lawyer, I don't know. If not, however, her employer's legal team will handle it, initially. I'm NOT an expert, but it sounds like you need more information right now before obtaining a lawyer.
posted by rainbaby at 8:09 AM on September 30, 2005

Has she filed a claim of assault against him for his continued use of a unnecessary product resulting in a health hazard at the workplace, to which he has been made aware several times?

She should talk to a doctor for the proof (should be easy to get) and then immediately to the police. At this point the only way to win is to escalate the situation until he gives up, IMHO.

When it comes down to it, a criminal record isn't worth the money he might make from a bullshit hate crime claim through the union.
posted by shepd at 8:12 AM on September 30, 2005

First of all, what are the motivations of the fellow? If he genuinely feels discriminated against, then then best mode would be to talk to him and point out that it was not meant that way. That is why I suggested that.

Everyone here seems to feel that the man is just out to make a quick buck. I doubt that. He is rather unlikely to win the case.

We've got just one side of the story.
posted by markesh at 8:18 AM on September 30, 2005

Shep's suggestion made me laugh. The guy deserves to have the tables turned on him in exactly that fashion, but it might not be a great idea to escalate the situation.

Probably what your mother really wants is to resolve the situation as quickly as possible. Her co-worker is an idiot, and you wouldn't believe how hard and draining it is to try to teach an idiot a lesson.
posted by orange swan at 8:18 AM on September 30, 2005

Thanks all. A lawyer it is.
posted by miss tea at 8:20 AM on September 30, 2005

She should also talk to the union and to HR. They need to protect her from unfair allegations as well.

What was her work relationship like with this man before the incident? Why did he not comply with her request? Could he have been asked to just wear less cologne, not stop altogether? Why did he think cologne has anything to do with race?
posted by desuetude at 8:26 AM on September 30, 2005

"If he genuinely feels discriminated against, then then best mode would be to talk to him and point out that it was not meant that way."

He played the race card. From that point on, it's a legal matter and best handled by professionals.
posted by mischief at 8:32 AM on September 30, 2005

Has she joined a professional organization for educators? Anyone in a school district should but many do not. Most (if not all) of them provide "Professional Liability Insurance" (it covers false accusations) and "Professional Legal Services". This could save her lots of $$.
posted by nimsey lou at 8:47 AM on September 30, 2005

To answer some of your questions, last school year she made this request and he complied, but when this year started he started wearing the cologne again. They don't work directly together, just share an office, so I don't think they have much of a relationship-- not a contentious one at least.

I honestly have no idea why this guy is doing this. I'll be the first to acknowledge that my mother can be a pain in the butt and occassionally a drama queen, but she isn't racist and what's the big deal, anyway-- it's not like she is asking that he make any substantive lifestyle changes. Many schools and hospitals have no frangrance policies for all staff.
posted by miss tea at 9:08 AM on September 30, 2005

somewhat different thing happened to me, but i thought i'd share what happened because it may give some perspective.
a few years ago, my desk location was moved. happens all the time at my company. so i was just standing around while the IT guy set up computer. he happened to be black. and, for no particular reason, i sang "swing low, sweet chariot". just cause its kinda funny to me to sing that. the racial content/history of the song didn't occur to me. i was just joking around. I mean we sang that song in grade school.
anyway the guy was offended and sent me an email at about 3 am saying he couldn't believe i did that. i emailed back saying i was so sorry. and he forgave me.
my point is:
1. people can be offended by things that would never occur to you.
2. if he had come to your mother personally and explained how he was feeling rather than file a complaint, then she would be able to talk to him one on one. but since he didn't, she has to get a lawyer and protect herself. its unfortunate but seems like the right thing to do.
posted by alkupe at 9:13 AM on September 30, 2005

I had a similar issue several years ago. I had written in an article that a certain area had been "a breeding ground for jazz." A truly odious woman (who, by the way, had no problem putting her name on my work and then submitting it for publication, but that's another story) decided that that particular phrase was racist, since by jazz, I clearly meant black people, and "breeding ground" was an insinuation of the iniquity and promiscuity of minorities. Sigh.

(Just as an aside, I had previously spent years of my life actively working in the black community in education initiatives. It was probably enough to make most people not take the allegation terribly seriously, but not enough to preclude a big to-do about the whole affair.)

I mention this because it's really unlikely that anyone actually thinks she's racist because of her request. Some people will ALWAYS find something to claim victimhood about. However, that's not really the point once they've escalated things this far. Now its about the school district covering their asses. Definitely have your mom get her own lawyer -- yes, the school district will have one, but that person will not in any way be looking out for your mom's best interest.

And as others have said, talking to this person AT ALL is positively the worst thing she could do.
posted by LittleMissCranky at 9:25 AM on September 30, 2005

There are just some people out there who are hyper-sensitive to anything that might be far remotely construed as racism. For the more legal minded responders, how likely is it that this charge will hold any water when things turn the serious nature of legal proceedings?
posted by Atreides at 9:33 AM on September 30, 2005

Lawyer? Am I reading this wrong? If your mother is not this man's supervisor then why would a lawyer be necessary?

Each party has expressed some offense. The parties should talk together with their supervisor or HR director to see how the offenses can be resolved. (That this has not happened and found a resolution already makes me think this is about my sister, whose boss is utterly worthless in the himan skills area.)
posted by Dick Paris at 9:35 AM on September 30, 2005

No help, just like to share an amusing story. I was friends with a woman named Kim who's husband, Steve, had a formal complaint of racism filed against him by a co-worker. Steve was in charge of administering certification tests at a nuclear power station, and one gentleman who failed his test said that he was failed because he was black, and Steve was white.

So the guy and Steve end up before HR to "discuss" the situation. Steve brought with him his family portrait so he could show the guy his wife. Who was black. And his children. Who were multiracial.

Needless to say, the issue was dropped real quick.
posted by KirTakat at 9:36 AM on September 30, 2005

I think our concern about her needing her own attorney is that she may need help to protect her job. It may occur to the school district that firing her would be a quick way of demonstrating their sincere intentions to fix this guy's problem, before he decides to sue.
posted by unrepentanthippie at 9:57 AM on September 30, 2005

IANAL.

I don't think your mother needs a lawyer. I do, however, think she needs to escalate the situation with her union because of the shitty advice her rep is giving her. I also don't see why HR isn't just saying "move one of them".

What exactly is this guy's claim of harm? Because as I understand it, you need to be legitimately harmed (loss of promotion/responsibilities) for anyone to really care about your claim. I don't think this would even pass "hostile work enviornment" muster.

Depending on how far she wanted to take this, however, she should consider filing a counter-claim of harassment/slander. A frivolous claim of racism is not to be taken lightly, especially if word of this has gotten out to other employees (see "hostile work environment"). Knowing that she's willing to take him to task may be enough to scare him off.
posted by mkultra at 10:16 AM on September 30, 2005

i wouldn't talk to the guy ... get documentation from a doctor about the allergies

this is exactly the kind of case that makes people cynical about civil rights cases, which is a shame ... this is not the kind of thing that the system should be used for
posted by pyramid termite at 10:19 AM on September 30, 2005

If your mother is a member of an employee bargaining unit, she should speak to her job steward or union rep and find out if legal representation is one of her union benefits, as it is in my school district employee bargaining unit. If that is so, she would then ask how to obtain this legal representation. As a union official, I can tell you that it is our mandate to protect our fellow bargaining unit members. If your mother and the other employee are both members of the same bargaining unit, then she should ask about arbitration services as soon as possible. Also, just to buttress her case, a doctor's note confirming the allergy(ies) would be very helpful in any case.
posted by Lynsey at 10:29 AM on September 30, 2005

The union should be highly involved with this. This is going to be a case of the employer versus your mother, which is exactly what the union is for.
posted by five fresh fish at 10:39 AM on September 30, 2005

Get a black lawyer.
posted by The Jesse Helms at 11:09 AM on September 30, 2005

One last thing - have her checkout the workplace policies in detail.

For the last 'n' years, every workplace I've ever been in has explicit policies regarding the use of colognes, perfumes, etc.

...especially medical, hospital and educational environments...
posted by jkaczor at 12:52 PM on September 30, 2005

Not to beat a dead horse...

IAAL - my advice - never, never, never, never, never, meet with someone after they've filed a complaint against you. That goes for any complaint. I mean that.
posted by MeetMegan at 12:53 PM on September 30, 2005

I agree with the crowd advising your mother speak with a lawyer. I had a similar situation where an employee accused me of being prejudiced against him due to his homosexuality. HR slapped me down, demoting and reprimanding me to avoid a lawsuit.

Funny thing is, even were I a bigot, I couldn't have acted on it since I didn't know he was gay. I figured that out *during* the initial we're-assuming-you-are-guilty "investigation" prior to the slap-down. I should have hired a lawyer at that point, but I foolishly believed that my innocence would matter.
posted by Invoke at 1:13 PM on September 30, 2005

She could ask to be moved to a different office.
posted by cass at 7:58 AM on October 3, 2005