Turning up the Heat on Employers: Thermostat Discrimination and Retaliation
by Joel Andersenq
Thermostat battles are a fact of office life.
Thermostat battles are a fact of office life, but complaints seem to blow hot and cold. As anyone who has worked in an office with a centrally controlled thermostat knows, individuals have widely varying degrees of temperature comfort levels. Surveys have shown the second-most-common workplace complaint among white-collar employees is "office too hot." The most common? "Office too cold." Science supports employees preferring the heat but offers little relief to the overheated workers. Given this heated (or cool) environment, it is no surprise that lawsuits flare up.
Employees, however, generally get the cold shoulder from courts. The leading case is probably the Third Circuit's decision in Shaner v. Synthes. Shaner argued that he had been discriminated and retaliated against because of a disability. In addition to alleging negative performance evaluations and denial of training, Shaner claimed he suffered thermaliation from coworkers by their manipulation of the office thermostat following his filing of a discrimination charge. Shaner went so far as to request a "lock box" be placed on the thermostat to prevent his meddling officemates from turning up the heat. Instead, the company transferred Shaner to a conference room with its own thermostat, but according to Shaner, the thermaliation continued. When he would leave for lunch, his coworkers allegedly would covertly enter the conference room and raise the temperature.
The court held Shaner failed to show the office thermostat was being adjusted because of his disability or complaints of discrimination. In the court's cool judgment, Shaner's workplace seemed rather typical. Employees frequently argued over the "correct" thermostat setting. One of Shaner's coworkers testified she had a "low tolerance for cold temperatures" and often asked the supervisor to raise the heat. Shaner's desire for a chilly office was held not to provide him any special rights in this heated environment. The court also held the limited instances when his personal thermostat allegedly was covertly adjusted were trivial actions that did not rise to the level of actionable retaliation.
Public employers may be at an even greater risk of thermostat litigation, since employees disciplined for speaking out about the office temperature can claim their protestations were protected under the First Amendment. The Seventh Circuit recently was forced to hold, in response to a public employee's incendiary claim that her objections about her office being too hot were protected speech, that "[c]omplaints about...office temperature do not address matters of public concern."
Some courts have warmed to complaints made by thermostat malcontents. For example, an employee who complained that, among other things, her supervisor discriminatorily manipulated the office temperature, including turning on the air conditioning when it was cold and the heater when it was hot and leaving the employee alone in the office with no way of adjusting the thermostat, was allowed the opportunity to present her hostile work environment claim to a jury. And while an employee who complained that the office thermostat was locked at a low setting (only the employee's supervisor could adjust it) as a means to create a racially hostile work environment was held not to have proffered evidence of conduct severe or pervasive enough to reach a jury, the court seemed to suggest a temperature-based complaint might survive if the "thermostat [i]s set at an unusually low temperature."
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Employers cannot quench the fires of litigation simply by providing employees with private offices (or conference rooms, as in Shaner). At least one court has suggested that an employee given an office that lacks proper temperature control because of a discriminatory or retaliatory motive might have a valid claim. In another recent case, an employee alleged constructive discharge based in part on his new private office being too hot in the summer and too cold in the winter, so much so that he often had to work in his heated car. On the other hand, an employee who complained that temperatures in her new office rose to levels of 90 to 100 degrees was held to have "allege[d], at best, only displeasure and inconvenience."
Regardless of the cool treatment of anti-thermaliation plaintiffs in prior decisions, the Supreme Court's recent expansion of what constitutes retaliation surely warms the cockles of the plaintiffs' bar's heart, providing hope for future success. In Burlington Northern and Santa Fe Railway Co. v. White, the Court held an employee alleging retaliation under Title VII, rather than having to show a tangible change in employment duties or adverse affect on employment status, need only show a reasonable employee would find the challenged conduct materially adverse. Reasonable employees typically do not enjoy working in 100-degree offices; thus, successful thermaliation suits under White seem far more likely.
So what are employers to do? Providing a private office with individual thermostat control for every employee is rather cost prohibitive. Instead, employers may want to take more temperate measures. In a recent case, rather than bowing to an overheated employee's request to place him in a private office with its own thermostat, the employer simply supplied the employee with a fan. The court held this was a reasonable response. The equivalent reaction to a complaint from a cold employee—supplying her with a space heater—surely would also be considered reasonable. The best advice may be to budget for fans and space heaters (and attorney's fees).
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