Ask A Manager: our employee says she’s not comfortable having her desk near men

[jadelennox]

A reader writes:

I work in a department of about 100. We are a slight majority female, maybe 60/40. Recently a desk opened up just behind a woman who has worked for us for over a year and we moved a new employee, who is male, into the empty spot.

Shortly thereafter, the woman approached her direct supervisor to say that based on some past trauma, she isn’t comfortable sitting so near a man all day, and she asked to have her desk moved. Is this reasonable? We’re empathetic to her feelings but she never made us aware of this need, and we may not always have the ability to avoid seating a man near her. We typically fill every seat available when we hire so even if we can find a spot that isn’t by a man, we could end up having to seat a man near her again if there aren’t other desks available. Are we obligated to accommodate her?

Answer:

My initial reaction was, basically, no. You wouldn’t accommodate someone who asked not to sit near someone of a different race, regardless of the reason. And even if the trauma piece moves this into the realm of a medical accommodation (under the Americans with Disabilities Act), your accommodations can’t require you to violate other laws (like assigning seats by gender would do).

But we’ve got dueling laws here, so I wanted to bring in an actual employment lawyer to answer this. Employment lawyer Donna Ballman, author of the excellent book Stand Up For Yourself Without Getting Fired says:

This is a tough one because we are dealing with potentially conflicting laws. First, if she is claiming a disability that requires this separation as a reasonable accommodation, the company must look at possible Americans With Disabilities Act compliance. However, the company is also prohibited from acceding to requests to engage in sex discrimination by Title VII.

I think the answer is probably a relatively simple one, since it sounds like the request was not an ADA request, but simply a preference. Had the request been made with a doctor’s note for an accommodation for a disability, or if she had said it was an accommodation for a disability, that might trigger disability accommodation concerns. Once an accommodation request is made, the employer must engage in the interactive process to determine a reasonable accommodation for the disability.

However, undue hardship is a defense to an accommodation request, so I think the employer in this case has an argument that requiring them to engage in sex discrimination is an undue hardship. Therefore, the employer might argue that the request is for an unreasonable accommodation.

The inquiry doesn’t end there though. Just because the specific accommodation is denied, the employer must still engage in the interactive process to determine a reasonable accommodation. So the question I’d ask, if this were truly a disability accommodation issue, is what causes the disability to be triggered? If the employee’s psychologist says it is male voices, then maybe a headphone would work as an accommodation. If it is aftershave smells, maybe they can ask the employee not to use the aftershave. If the very existence of a male in the workplace triggers the employee, then there is probably no reasonable accommodation. But sometimes being creative and having a serious discussion with the employee and their doctor might allow a truly reasonable accommodation to be reached.

Bottom line: Where it isn’t a disability accommodation request, there is no requirement that the employer even consider a discriminatory request. Indeed, the request must be refused. If there is a disability that needs an accommodation, even though engaging in discrimination is not reasonable and is a hardship on the employer, there may be alternative non-discriminatory accommodations that could accomplish what is needed to allow the employer to perform their job duties.

I asked Donna, “Doesn’t the employer have an obligation to treat it as an ADA request even if the employee doesn’t specifically frame it that way, if the employer themselves believes the employee has a covered disability?”

Donna’s answer:

Yes, if the request causes the employer to believe a covered disability is involved, that triggers the interactive process. In this case, maybe the request did, but based on the way it was phrased in the question it really sounded more like a preference than a disability. The logical next question would be whether there was a disability that needed to be accommodated.

So, no, you cannot assign seating based on gender, period. Translated into advice for this letter-writer: Explain to the employee that federal law prohibits you from assigning seats based on gender, since that would be sex discrimination, but ask if there’s anything else that might assist her in feeling comfortable and focused at work. And then, especially the situation is presented as a disability, work with her to figure out if there are other accommodations you can make, and begin that interactive process with the hope that it might lead to a solution that works for her, doesn’t violate other laws (as her initial suggestion would do), and doesn’t create undue hardship for the organization. (And if you have trouble finding that solution, make sure you have a lawyer advising you before you give up — because what normal people consider “undue hardship” doesn’t always match up with what the law says.)

Comments

[jadelennox]

I'm curious what other people thought about this answer. I liked it, even though sometimes I think Alison doesn't do a great job with questions around health and disability. I particularly liked the employment lawyer's comment:

If the employee’s psychologist says it is male voices, then maybe a headphone would work as an accommodation. If it is aftershave smells, maybe they can ask the employee not to use the aftershave. If the very existence of a male in the workplace triggers the employee, then there is probably no reasonable accommodation. But sometimes being creative and having a serious discussion with the employee and their doctor might allow a truly reasonable accommodation to be reached.

I think this is great advice: reasonable accommodation does not mean that you can violate other employment laws. (Another reasonable accommodation might be allowing the employee to work from home, if the job allows remote access.)

[ambyr]

I am assuming that this is an open office set-up because of the use of the word "desk" instead of "cubicle," in which case--the elephant in the middle of the room here is that open offices suck for everyone. There's just no way to get away from people who you don't want right up in your business for whatever reason. Solution: give people reasonable amounts of personal space and privacy in your office so no one has anyone hovering over their shoulder.

[kaberett]

I mean, yes, they do suck for everyone, but I promise that PTSD + hypervigilance + sensory processing issues make them worse!

[ambyr]

Oh, yes, I am not doubting this! I just have a preference toward (when possible) making environments proactively universally more accessible rather than making specific reactive accommodations for specific individuals, because the latter situation puts a greater burden on people with disabilities (requiring them to disclose/advocate for their needs) and makes it easier for institutions to dismiss accommodating them as "too much work."

[kaberett]

Which is to say: I was a bit baffled when I first read this that the answer hadn't been "are you generally hypervigilant and do you have a PTSD diagnosis? Because if so a reasonable accommodation *in general* would be giving you an enclosed office, or ensuring that your seating is somewhere such that you're not blocked in/don't have people walking up behind you, as appropriate", which just... wasn't quite there.

[jadelennox]

Yeah, I expect my accessibility needs to be accommodated (because dictation, which literally doesn't work in an open office space) by moving me, not by moving my coworkers. And I've had employers try to suggest noise cancelling headphones for my coworkers so they won't hear me (sorry, my microphone will still hear them), but accommodations should be, as much as possible, non-disruptive to the colleagues. So giving an office with a door to the employee who might have PTSD would absolutely be considered a reasonable accomodation.

As I've said to many employers: you need to give me a private space. It doesn't need to be nice. It can be crappy and far away and in the back of a cupboard. But in the US, the ADA doesn't consider "but we all sit in an open floor plan!" to trump reasonable accomodations.

[torachan]

But the woman was already sitting there with someone behind her and had no problem, therefore it's clearly not a general problem with having someone sit behind her and thus no need to bring it up.

[kaberett]

Nnnnnno - it might be that she's able to grit her teeth and bear it when it's a woman, but a man tips it over into "I cannot possibly cope with this". If she didn't want to disclose or make a fuss at a lower (but still significant) level of distress I think that would be understandable?

[jadelennox]

it's so annoying because all the research shows that open floor plans make people less effective but they are cheap so companies still do them.

[grammarwoman]

My company instituted an open office plan in another location so they could cram more people in that area, and tried to claim that "millennials love them!" Pretty sure it's a case that millennials don't have enough clout to tell them to shove it.

Me, if I had to deal with an open office setting, I would quit so fast there'd be a cartoon dust cloud. There's a reason I love working from home.

[cereta]

I haaaaaate them. I'm kind of surprised that we still have them in education, because FERPA, but I guess there's some kind of legal loophole there.

[monanotlisa]

This is the real one, I agree -- open-office seatings suck dead rats through a garden hose (but they're cheap, and they provide peer control so no one faffs off on teh internets, so).

I do agree that the answer is fine, and from a legal perspective probably the only right one. Still, I do cringe for that lady.

[fairestcat]

The thing that immediately jumped out at me was that the open desk was “just behind” the woman. I wonder if an accommodation that just involves there not being a man sitting directly behind her might be acceptable for everyone.

[the_rck]

I was thinking that the just behind part might be a bigger issue than the proximity. With him behind her, she can't tell what he's doing at any given moment. Putting her with her back to a wall would likely help.

[quinfirefrorefiddle]

Yep, this is what I came to say. Can they give her a desk so her back is to a wall? ETA: whoops, yes, exactly.

[monanotlisa]

That's such good input.

For me, it really is the "directly behind me" issue that sets my anxiety off. Sideways, or switched, might work here.

[colorwheel]

This post had a recent update -- it's #1 in this group of updates. i'll also paste it here.

I wanted to give an update on the employee who was uncomfortable with a male seated behind her.

We did end up moving her to a desk that was closer to her direct supervisor and in a row that was all women. We did let her know that we couldn’t guarantee her that we’d never have to seat a man by her but we’d avoid it if possible, and she was very appreciative.

Since then, she’s been assigned to a team that has one male supervisor and we’ve worked with her to avoid any uncomfortable situations (he’ll call her to check in rather than stopping by her desk, for example). She’s said that she knows that there may be times where being in close proximity with men is unavoidable and emphasized to her leader that it was nothing personal, and in general has said that she’s very grateful that we’re willing to work with her on this at all.

The only downside to the situation is that she’s presented it to peers who have asked as “I just asked to move my desk and they moved it,” which is counter to our actual policy that we only move people if there’s a business need or for medical accommodations. This has led to a few other people being frustrated that they aren’t being allowed to move upon request, and of course we’d never share with them the private details of why we actually moved her.