ADA Law: OK to fire violent worker?

by on January 14, 2009 · 0 Comment POSTED IN: HR Info Center

Company runs afoul of new trap in Americans with Disabilities Act law

An employee’s outbursts of bad language and behavior have made co-workers distrust and dislike her. You call her in to tell her this can’t continue. She goes off like a rocket, throwing papers and cursing, then leaves your office and trashes her cubicle.

What to do next is a no-brainer, right?

Termination is clearly the only possibility for such an out-of-control person – especially in a day and age when there may be reason to fear real violence. Except for one thing: The employee has told supervisors she’s struggling with bipolar disorder, seeing a therapist and trying to work out the right medication.

She claims ADA disability caused her misconduct.

In an ADA lawsuit like this from Washington state, the employer fired the worker anyway –and got socked with a disability discrimination case that a federal appeals court refused to quash.

Ridiculous, you say? The company sure thought so, as did an employers association that weighed in on its side.

THE DISABILITY MADE ME DO IT
But the court said a jury should decide whether the employee’s disability actually made her misbehave, and whether the employer fired her because of the ADA disability.

The court said:
“Conduct resulting from a disability is part of the disability and not a separate basis for termination.”

Translation:
Workers behaving badly can make a “devil-made-me-do-it” ADA lawsuit about mental disability, and courts will listen. So what’s an employer to do?

ADA Guidelines for Managers

You might want to consider the following three-part strategy to stay within ADA guidelines:

1. HEAD IT OFF BEFORE IT HAPPENS
The best outcome is to keep this kind of problem from ever getting to court.

Key: a strong proactive strategy for dealing with workers with such conditions as obsessive-compulsive disorder, post-traumatic stress disorder or clinical depression.

To guide distressed workers toward care before their problems reach the
eruptive stage, you can:

• Encourage people to use the mental health facilities paid for under your group health plan.

• Destigmatize the treatment of emotional problems. You could use speakers, conferences, and/or training to accomplish this.

• Refer people to an Employee Assistance Program, if one is available.

2. SPOT IT WHEN IT HAPPENS
No matter how much you talk up preemptive measures, not all employees with disabilities will take care of themselves. Even if they try – the employee in the Washington case was undergoing therapy– it may not always work. So you need to be ready for occasional disruptive behavior by a troubled individual.

Have supervisors to always alert HR if an employee starts behaving erratically.

If you have early warning, you can intervene more effectively. And mental
or emotional instability is not a problem a supervisor can solve with a pep talk or
pat on the back.

You may want to train supervisors to spot signs of bipolar disorder, depression,
and other common mental disorders that the courts may regard as disabling.

And don’t be too concerned about employee resentment that you think
they’re “crazy.” Normal people whose emotional problems are only passing, not
chronic, will be grateful you noticed something was bothering them.

3. DEAL WITH IT

If you get a warning of a seriously troubled individual, it’s up to you to
discern whether the problem warrants HR action. It may be worth your while to
establish a relationship with an industrial psychologist who can help you here.

If action is warranted, a good first step may be to suggest the employee
take FMLA and/or disability leave. You can legally make the suggestion if you
don’t otherwise treat them as disabled.

During the leave, you’ll need to figure out whether you can offer the person a reasonable accommodation – a transfer to a less stressful job, or one involving less contact with others –
when they come back. If not, now’s the time to document that an accommodation isn’t possible without disrupting the business. This will allow you to ease the employee out when/if she exhausts her accrued leave.

And it may also be time for you to start building a case that the worker poses a “direct threat” to himself or others – a defense you may need if you do get hauled into court.

Cite: Gambini v. Total Renal Care,
No. 05-35209, 9th Cir, 4/24/07.

Issue 5.20 DOP 5-28-07

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