When an employee complains of harassment, the employer response is to investigate and take appropriate remedial action. In Kagawa v. First Hawaiian Bank/Bancwest Corp., the employer responded accordingly and is now a defendant in an ADA “regarded as” claim.
The plaintiff, a Senior Credit Analyst, alleged that she is a mystic, hears God’s voice directly, and had a dream in which God told her that another bank employee had romantic feelings for her. She alleged that after she told that employee about her dream, her supervisors told her that the employee felt harassed by her comments. The company told the mystic not to have any contact with the other employee, directed her to read the company’s sexual harassment policies and ordered her to seek counseling “under threat of termination.” The company placed her on administrative leave.
The plaintiff attended a counseling session and alleged that the counselor told her to see a doctor, which she refused to do because she was not willing to pay for the appointment. The bank terminated her employment.
The plaintiff’s lawsuit includes numerous discrimination claims. The employer moved to dismiss the ADA claim. Calling it a “close case,” the Court denied the motion, noting that: the bank ordered her to go to counseling or be fired; the manager’s statement on the counseling report that she ““hears a voice” and would do whatever the voice told her to do.” could be misleading since the mystic claimed she hears God’s voice, and “not just any voice” like “some insane person”; and the counselor told her to see a doctor, which the court understood to mean a psychiatrist of psychologist. Taken together, the court said, the plaintiff has plausibly alleged that the bank regarded her as having some kind of mental illness.
The Court’s denial does not mean the plaintiff has won; the case moves to the next stage of litigation. However, the denial is a reminder that whenever an employer talks to an employee about counseling, whether it be a voluntary or mandatory referral, whether it be with an altruistic motive or as part of disciplinary action, the possibility of an ADA “regarded as” case looms. As this case illustrates, that risk exists even when the counseling is part of the “appropriate remedial action” taken in response to a complaint of harassment.