We are all aware that mental problems qualify as disabilities under the Americans with Disabilities Act and the ADAAA as long as that mental disability substantially limits one or more major life activities, such as the ability to work. However, if that mental condition is combined with being violent the individual may not be covered. That may depend on the level of violence.
A recent decision by the Ninth Circuit Court of Appeals held that an employee was not covered for wrongful termination under the ADA because his actions, death threats against his supervisor and fellow employees, were not protected actions. The court held that the ex-employee was not a “qualified individual” because he was unable to perform the essential functions of the job, despite the fact that he had been employed over 10 years. So how was he not qualified?
The court’s determination hinged on their definition of an essential function. They said it was “An essential function of almost every job is the ability to appropriately handle stress and interact with others.” My guess is that many of us would not have considered that in the list of essential functions.
The question then becomes at what level an employee’s behavior falls short of “the ability to handle stress and interact with others”? According to attorneys Yvette Davis and David Harris, the Ninth Circuit did not define a “bright line” definition of unacceptable behavior.
The Ninth Circuit’s decision affirmed that an employee who promises to blow off the head of a supervisor and manager has crossed the line of protection and is unable to perform the essential function of handling stress and interacting with others. But what if an employee has not reached that level of threat? According to Davis and Harris “Employees who are ‘simply rude, gruff or unpleasant’ and employees with ‘anti-social’ behavior or ‘psychiatric disabilities’ can still be found to be ‘qualified’ and will be entitled to reasonable accommodations.”
This means that this decision and the court’s definition of essential function does not signal an “open season for termination” on employees who cannot handle stress and interact with others. Davis and Harris say “While the employer may usually terminate a potentially violent employee without fear of liability, it is not clear the employer may terminate an employee whose conduct is extreme, but not violent. Each case must be evaluated individually with a balancing act made between the propensity for harm versus the protections afforded by the ADA.”
What to do?
Certainly each case of a difficult employee needs to be documented. Each employee will have to be dealt with on an individual level. Rather than terminating, suspensions and investigations may be the best course of action. Generally people who have developed the inability to interact with others have done so over a period of time so there may already be a history to help you determine what course of action may be appropriate.