Roby v. McKesson – Harassment v. Discrimination

The California Supreme Court recently ruled on the Case of Roby v. McKesson which is, among other things, a study on what not to do as a manager.

Charlene Roby worked for McKesson Corporation for 25 years, most recently in a warehouse position processing orders. During her last few years at McKesson, Ms. Roby began suffering from panic attacks that left her unable to do her job. At about the same time, an absence point system was put into place which required 24 hour notice for any absences.

Although Ms. Roby had received favorable reviews throughout her career, she ran afoul of the attendance policy which rubbed her supervisor, Karen Schoener, the wrong way. Ms. Schoener allegedly complained loudly about Ms. Roby’s body odor (a medication side effect), disciplined Ms. Roby in front of other employees, excluded Ms. Roby from gift giving and office parties and made fun of Ms. Roby’s condition.

Things finally hit the fan when Ms. Roby was terminated in May 2000 due to excessive absence caused by her panic disorder. After her termination, Ms. Roby’s symptoms grew worse, to the point where she became suicidal.

Ms. Roby sued both McKesson and Ms. Schoener for harassment and discrimination in violation of FEHA as well as McKesson only for failure to accomodate. The jury came back with a $3 million award plus $15 million in punitive damages, although the Supreme Court reduced the award to $1,905,000.

From the Court Opinon Brief:

The Court of Appeal’s judgment is reversed, and the matter is remanded to that court with directions (1) to reinstate a single harassment award of $500,000 against both employer McKesson and supervisor Schoener; (2) to reinstate the jury?s $3,000 punitive damages award against supervisor Schoener; and (3) to modify the punitive damages award against employer McKesson to $1,905,000. The Court of Appeal is directed to affirm the judgment of the trial court as so modified.”

Aside from the clear case of bad corporate behavior, an interesting question came up in this case. What is the difference between harassment and discrimination?

From Shaw Valenza’s blog (one of my favorites):

One of the issues the Supreme Court addressed is whether a manager / supervisor’s conduct during “personnel actions” is evidence not only of the discriminatory motive, but also harassment. The court explained the difference as follows: “discrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. ”

All clear on that? Well, Fox Rothschild explains it better than I can:

In tossing the harassment award, the court of appeal said that personnel management decisions couldn’t support the harassment claim because they were part of the discrimination claim.

The supreme court disagreed with the court of appeal’s premise that the same conduct couldn’t be both discrimination and harassment. It explained that official employment actions (i.e. discrimination) can communicate a hostile message (i.e. can be harassing). This is bad news for employers. By blurring the distinction between these two types of wrongful conduct, the court makes it easier for employees to proceed with both types of claims. It’s also bad news for managers. The law was clear before that managers could not be individually liable for carrying out personnel decisions. Now, it seems, the courts and juries are going to evaluate whether those personnel decisions were carried out in a way that sent a harassing message.

In other words, make sure you train your managers, not only on what they should be doing, but also on what they should NOT be doing. Otherwise it can get very expensive.