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.)