"Harassing Her Made Me Sick!"
by Peter S. Saucier

Imagine yourself as the boss of the Michigan Corrections Department. One of your probation officers develops a peculiar attraction to women lawyers who represent convicts in his charge. Indeed, he is remarkably blunt in expressing his feelings, commenting, "You want me, you know you want me," and asking, "Do you want to ***k?" Some of his harassing behavior even appears in letters to one of the women attorneys. You probably do not need a law degree to figure that you can discipline the rascal – say, suspend him for ten days – without legal risk.

Well, you are wrong. And, I am willing to bet that you cannot guess why, law degree or not. It's that old nemesis that every employer has loved to hate for years – workers compensation.

In the real case (it is a real case), probation officer Tony Daniel developed depression after the suspension. It seems that the cause of the depression was the lack of support from management evidenced by his suspension. Daniel applied for workers' compensation benefits, claiming a work-related mental disability based upon the depression. As difficult as it is to imagine, the trial of Daniel's case consumed four days. The workers compensation magistrate concluded that Daniel was entitled to benefits. In his decision, the magistrate wrote that compensation benefits, "like rain, fall on the just and the unjust alike."

It is tempting to write off the decision as the nonsensical blather of a decision- maker whose cranial logic section sprung a leak, but that would be a mistake. The case was appealed a couple of times, and ended up before the Michigan Court of Appeals. There, two appellate judges allowed Daniel to receive benefits, finding that his status as an unsympathetic and difficult (using the court's own timid description of Daniel's conduct) employee did not disqualify him from receiving benefits.

Most experienced labor and employment lawyers would have missed this question on a final examination, or at least would not have reached the same conclusion as the Michigan Court of Appeals. So, if you did not predict the outcome, don't feel too bad.

December 2001

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