When does a disability justify bad behavior?
April 30, 2008 by Sam NarisiPosted in: Americans with Disabilities Act, Best Practices, In this week's e-newsletter, Latest News & Views
If an employee has an angry outburst and hurls profanities at a boss or co-workers, you’d fire him or her, right? Not so fast – the behavior may have been caused by a protected disability.
The biggest problem for employers is the increase in mental disorders that are protected by the Americans with Disabilities Act (ADA). Some conduct that would normally be considered inexcusable might in fact be caused by protected mental problems.
If that’s the case, you might be required to make policy exceptions or take alternative action instead of firing someone.
Protecting against threats
One thing courts have been relatively clear on: Employers have the right to keep their workplaces free of threats and violence. In other words, a mental disability won’t fly as an excuse if someone threatens or injures a co-worker. (In fact, if you think someone’s a threat and don’t fire him or her, you can get sued for negligence if some violence actually occurs.)
But thinks get tricky when the conduct isn’t quite so serious.
In one recent case, even destructive behavior and profanity weren’t enough to warrant an immediate termination. A woman was given a copy of a performance plan while she was in an evaluation meeting with her supervisor. Finding it to be unfair, she threw the papers across the room and cursed at the supervisor. Later, she was seen throwing other objects around and kicking her cubicle walls. Not surprisingly, she was fired.
But she sued the company, claiming her behavior was the result of her bi-polar disorder. The company lost. Why? Because it knew about the disorder beforehand, and it couldn’t prove the woman posed a “direct threat” to anyone in the office (Cite: Gambini v. Total Renal Care).
Conclusion: It’s a tricky legal area, to say the least. But one lesson is clear: If someone tells you they’ve got a disability, it’s smart to think about other options – and possibly talk to legal counsel – before dropping the ax.
May 7th, 2008 at 5:00 pm
What if June gets fired because another employee, Jane, of the company said that June was hostile toward her. But, the thing is Jane took a comment June made using the term “you people” know how to use this stuff, I don’t. June has a college degree and is a Financial Manager and Jane is an admin. assistant to the President, but the President’s position was eliminated, so she just works for the Managers in the Plant now. Jane held her hand up (like stop) and told June to get out of her office, although all June was doing was explaining an AP procedure to her for a check request. This escalated and Jane said June was hostile toward her and they fired June without hearing her side of what happened. The HR Dept and Plant Manager only listened to Jane’s side. They live in FL and June was told that Fl is an at-will state so she couldn’t do anything.
May 8th, 2008 at 2:31 pm
I had a bipolar employee, and it was a tough job for me to tackle! I have had things thrown across my desk at me, and I have been cursed out. Employee left premises without permission for hours at a time. Employee also verbally bashed coworkers to customers about things she perceived that they had done wrong and how she had been treated unfairly. All of these things are against company policy. Employee is no longer working here - She retired - but if I had fired her, could I have been sued? Oh I forgot to mention stealing money (small sums) also. And chatting online with internet boyfriends all day - instead of working. Where can we draw the line without paying for it???
May 8th, 2008 at 4:50 pm
The two latter violations (stealing and chatting) sound unrelated to the disorder, so I’d imagine firing for those reasons wouldn’t violate the ADA. As for the other things, courts seem to still be figuring out where the line is. You can go here for a longer read on the topic: http://www.shawvalenza.com/publications.php?id=72
Sam Narisi
Editor
HRLegalNews.com
May 9th, 2008 at 12:56 pm
I had occasion to be sued for an ADA claim by an employee who had previously informed me that she suffered from Major Depression, Anxiety, and Attention Deficit Disorder. We successfully argued to the Montana Human Rights Bureau that merely informing an employer that she had a disability did not qualify as requesting reasonable accomodations under ADA. In addition, I would concur with Mr. Narisi’s statement that the violations were unrelated to the disorder, as was our case. In Montana at least, the Rule is that if an employee is seeking protection or accomodation under ADA for a disability, the employee must provide documentation from the Provider that they do indeed, suffer from a disability, and the employee must specify the accomodations requested.
May 11th, 2008 at 11:35 pm
[...] Justice for S&B NHS Garden Centre Workers wrote an interesting post today onHere’s a quick excerptIn other words, a mental disability won’t fly as an excuse if someone threatens or injures a co-worker. (In fact, if you think someone’sa threat and don’t fire him or her, you can get sued for negligence if some violence actually occurs … [...]