Last week, Bloomberg News reported that international law firm White & Case LLP terminated a partner in the firm’s London office. The lawyer alleges he was terminated after suffering anxiety and depression following the death of his wife due to cancer, and that he experienced a toxic workplace culture at White & Case. The firm responded that they terminated the lawyer for poor performance and for working on a new, competitive, legal venture while on sick leave. This case will put the issue of when grief, perhaps rising to the level of anxiety and depression, might constitute a disability within the meaning of applicable human rights laws in the UK, a precedent potentially relevant to disability cases here.
Let’s parse this a bit—grief is not the same as depression. Grief can be defined, roughly, as the pain that accompanies loss. Some individuals experience an acute period of grief while others face an extended period of loss. We do not all experience grief on the same timeline, let alone to the same extent.
According to Massachusetts Lawyers Concerned for Lawyers psychologists Shawn Healy and Scott Fortgang in The Full Weight of the Law: How Legal Professionals Can Recognize and Rebound from Depression (2017), grief can present in similar ways to depression: sadness, reduced concentration, and tearfulness, and some individuals who are feeling grief may develop clinical depression, especially if they are unsupported or are unwilling to process their grief. There are aspects of how grief differs from depression--decreased self-esteem and increased hopelessness—but there are internal metrics which for law firm management or a co-worker are unqualified to assess.
One other difference is that grief decreases with time, generally, except for when reminders of loss occur. Again, this is difficult for an employer to determine since grief is experienced differently by individuals. However, many believe that grief has five distinct stages: denial, anger, bargaining, depression, and acceptance.
Confusion between depression that can be classified as Major Depressive Disorder (MDD) and depression as the fourth stage of grief may relate to a change from the DSM 4 to DSM 5. In the DSM 5, the “bereavement exclusion” was removed from the diagnosis of MDD. The bereavement exclusion meant that people in the first few months following the death of a loved one should not be diagnosed with MDD. The DSM 5 recognizes that an individual can experience grief at the same time as MDD—the two are not mutually exclusive.
White & Case has more than 2200 lawyers worldwide. They likely have some top tier employment lawyers. One would assume that they wouldn’t terminate a lawyer whose spouse just passed away and appeared to be struggling unless they had clear evidence of wrongdoing—but I have seen stranger things when I practiced corporate employment law, which included complex disability management.
As lawyers, we know that demand letters and Statements of Claim are sometimes creative. We know that pleadings contain allegations rather than facts, and that there is usually another side to the story—or there wouldn’t be any litigation.
When I was practicing inhouse, I saw many intriguing allegations in letters from lawyers retained by terminated employees as well as the odd statement of claim. One of my favourites was a letter sent on behalf of an employee terminated for submitting altered credit card receipts. An internal auditor called the retailer as part of a spot audit to verify a purchase of a pair of hip waders (for a worker whose duties made hip waders necessary on occasion) and the store clerk said that the merchandise in question was actually a shorty wet suit. We didn’t have any employees who needed shorty wetsuits! When I explained to the terminated employee’s lawyer that his client had altered a receipt to fraudulently obtain repayment from his employer, the lawyer asked if we would consider settling for $1,500 and a letter of reference. A bit cheeky, in my view. I said not a chance, and they went away. Sometimes people make claims to see if they can get any traction, and sometimes terminated employees have their own version of the truth which may be somewhat different from the employer’s version.
The former White & Case lawyer alleges that his workplace was toxic, that he was accused of lacking commitment because he took a day off work to spend with his terminally ill wife for her birthday, and that the firm did not offer any support after he told senior management and HR he was struggling. He believes that they discriminated against him because of mental disability.
White & Case has its side of the story. They allege that the lawyer was working on a new legal business venture while on sick leave which might, if proven, provide just cause for termination. However, in Alberta, employers who are seeking to terminate an employee with a disability must consider whether the employee’s disability caused the behaviour in question—and this can be very challenging. I had a client whose employee stole money to fund his drug addiction—these are never easy.
This case interests me because it puts the employer in the role of ascertaining whether an employee’s mental condition crossed the line between grief and depression—was he merely experiencing profound grief or had his mental state extended into mental health conditions anxiety or depression (or possibly both?) According to the Bloomberg article, White & Case has stated that grieving the loss of a loved one is not a disability. This would be true in Alberta as well—“mental disability” is defined by the Alberta Human Rights Commission as “any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder” and grief is not a disorder—it is a normal reaction to loss.
If this case proceeds to trial, it will likely come down to a battle of experts. The lawyer will produce a mental health expert who will say that he met the diagnostic criteria for MDD or anxiety, and the firm will produce its own expert who will say that the lawyer was merely grieving and that the threshold for mental disability was not met. I will be watching this case as it unfolds because this area of law continues to interest me, but also because it has implications for lawyers who Assist supports: what is a lawyer to do if they are experiencing a profound and extended period of grief after losing a loved one? Should they be concerned that their employer may terminate them if their grief doesn’t resolve quickly? Should they seek a mental health leave out of an abundance of caution to protect their jobs, even if they are able to complete most of their duties effectively and having the routine of going to the office (if the lawyer regularly works from an office) is helpful to them?
I would like to think that Alberta lawyers would not terminate a lawyer on bereavement leave or otherwise exhibiting distress without thoroughly canvassing whether the lawyer’s conduct might be caused by a disability. Remember that Dr. Forbes can advise law firm management with respect to managing lawyers with disabilities, and I have some background in complex case management as well (although I cannot provide legal advice.) You can reach Dr. Forbes at 1-877-498-6898.
Individuals who experience a mental disability need to believe that their jobs are protected while they recover. We are fortunate to live in a jurisdiction which does this. However, there is a grey area where an individual’s reaction to a loss shares indicia with mental health conditions like anxiety or depression.
Drs. Healy and Fortgang note that diverse cultures process grief differently. Just because someone is experiencing grief differently than what you expect, it does not mean that they are wrong or that they are tipping the scales toward mental illness. We live in a multi-cultural society and understanding that not all cultures address bereavement and loss the same way is essential.
If you are an Alberta lawyer, articling or law student, or a dependent family member, and you are experiencing grief, you do not have to suffer alone. Assist’s counsellors can help you process your feelings which is part of a healthy response to grief. Remember that you are entitled to four confidential professional counselling sessions per person per issue per year.
Many individuals worry that accessing an employee assistance program, or a lawyer assistance program, is not truly confidential and that there is reporting from the provider to the employer or regulator. I can confirm that during the many years when I was involved in complex case management with medical staff and HR, I am not aware of information being reported back by employee assistance programs.
We were only privy to information from physicians and psychologists if the employee consented. And I can confirm that Assist’s counsellors do not report to employers or to the Law Society or to me and that I do not report to employers either. Assist is a confidential service, in accordance with both registered psychologists’ and lawyers’ codes of conduct.
Please do not let fears about confidentiality issues keep you from seeking help. You can call me, or Dr. Brian Forbes from our counselling office, to address your concerns. Assist is fortunate to have Dr. Richard Spelliscy, the Registrar of the College of Alberta Psychologists, serving on our board. The College oversees registered psychologists in Alberta. If your counsellor is a member of regulated profession, like Assist’s counsellors, you have assurances about confidentiality. Click here to read the Code of Conduct for registered psychologists. Please note that terms like “psychotherapist” and “counsellor” are not regulated. This is why we only use registered psychologists and registered social workers in our program.
And please remember that Assist is here to help you with grief and loss, even if they do not meet the clinical level of a DSM 5 diagnosis.
Yours in well-being,
Loraine
No Red Line Between Grief and Depression
