Jillian’s Analysis of Quirky Question # 176: Obesity, Disabilities and the ADAAA
[Readers: The analysis of Quirky Question # 176 was provided by my colleague, Jillian Kornblatt. If you have any questions about her analysis, please don't hesitate to contact Jillian at 612.492.6156, or at kornblatt.jillian@dorsey.com. We hope you find the discussion below helpful, both with respect to the assessment of obesity as a disability and in terms of understanding the new requirements of the ADAAA. Regards, Roy]
Quirky Question # 176:
We run a full-service lakefront resort, and our prime season is starting this month. We are open year-round, but increase our staff size significantly each summer by re-hiring many employees who return each year. One of our long-time summer waiters, who has always been a bit overweight, arrived this year heavier than before and unable to fit into the largest size available of our required uniform for waiters. She has asked us if she can wear something else. We questioned whether her weight gain was from a medical condition, and she told us it isn’t, but her doctor said she was “severely obese.” She’s always been an efficient and well-liked waiter, but it’s important that our waiters wear the same uniforms so our customers can easily identify staff while using our recreation areas. Can we refuse to hire her this year because she can’t fit into our uniforms?
Jillian’s Analysis:
This question is a summer-vacation inspired twist on Revolinski v. Amtrak, an obesity-based disability discrimination case that was decided on May 24, 2011 – the same day the Equal Employment Opportunity Commission (EEOC) regulations under the Americans with Disabilities Act Amendments Act (ADAAA) went into effect. 2011 WL 2037015 (E.D. Wis. May 24, 2011). In Revolinski, an employee’s application for continued employment as an assistant conductor was denied, due in part to his noncompliance with Amtrak uniform standards. Revolinski was unable to wear the uniform because of his weight, which was in the range of “morbid obesity” (defined as weight more than 100 pounds or double an individual’s optimum weight).
Because Revolinski’s claim under the Americans with Disabilities Act (ADA) was time-barred, the court considered only his disability discrimination claim under the Rehabilitation Act (the statute prohibiting federal employers from discriminating on the basis of disability). Courts frequently rely on ADA analyses when deciding claims under the Rehabilitation Act because of the statutes’ similar prima facie requirements. Using pre-ADAAA statutes and regulations (the ADAAA was not retroactive prior to its Jan. 1, 2009 effective date) the court determined that Revolinski’s obesity was not a disability under the Rehabilitation Act and awarded summary judgment for Amtrak. Due to the recent changes in disability discrimination law, though, it’s quite possible that a court would find differently if deciding whether the employer’s refusal to hire the employee in the above scenario was impermissible under the ADA. For example, a Mississippi federal court relied on the ADAAA to deny an employer’s motion to dismiss an obesity-based disability discrimination and hostile work environment claim by its former employee. Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010). Read more
Roy’s Analysis of Quirky Question # 163, Accessing Mental Health Records in a Physical Disability Case
Quirky Question # 163:
One of our employees recently claimed that he is entitled to a reasonable accommodation of his physical disability (a serious back problem). We were unable to work out an accommodation for the employee (we probably did not do as much as we should have during the negotiation phase) and we terminated his employment. He then sued us under the Americans With Disabilities Act.
We’re now involved in discovery. We’ve asked for all of his medical records – both physical and mental. His lawyers have authorized us to obtain access to all the medical records relating to his physical infirmities but have refused to provide us access to his mental health records.
Aren’t we entitled to this information? What if the mental health records demonstrated that he is not really capable of performing the essential functions of the job? Moreover, given the close relationship between physical and mental health, shouldn’t we be able to get access to this information? What if his maladies really are psychosomatic?
Roy’s Analysis:
The question you pose arises in many different kinds of employment cases, including many that do not implicate issues of disability discrimination. Employers often seek to obtain information regarding the plaintiff-employee’s medical records, including information relating to the employee’s mental health issues.
It is not difficult to construct arguments regarding why and how this information could be relevant to the defense case. As in the fact pattern you describe, is the employee’s physical problem exacerbated by his mental health issues? Or, as you ask, is the physical problem a legitimate health issue or is it entirely psychosomatic?
As noted, a defendant’s access to a plaintiff-employee’s mental health records can arise in many contexts other than disability discrimination. Most state anti-discrimination statutes contain provisions allowing for the recovery of pain and suffering, or emotional distress, damages. Many defendant-employers, therefore, believe that it is appropriate to explore the plaintiff’s mental health in every type of discrimination case. Often, this exploration includes discovery seeking the plaintiff’s medical records pertaining to the employee’s mental health. Read more
Reasonable Accommodation for Absent Employee? Quirky Question # 154
[Readers: It's the first Wednesday of the month so it's time for one of our West Coast Quirky Questions. Tune in next Wednesday for the analysis from one of our colleagues in our Southern California office. Regards, Roy]
One of our manufacturing employees, call him Jim, was fairly seriously injured in an accident on the production floor. Jim applied for workers’ compensation and was examined by a doctor. The doctor let us know that in his opinion, Jim would no longer be able to perform his job, since it required a significant amount of lifting and bending that he was simply no longer physically capable of doing. Rather than taking immediate action based on the doctor’s opinion, we waited. We thought maybe his condition would improve – Jim was a good employee, and we just didn’t want to do anything too hasty.
Meanwhile, we knew Jim was aware of the doctor’s report that he could not return to his job, but he didn’t get in touch with us to contradict it or to tell us he did want to try to return to work if we could find a way to have him do it. Admittedly, we did not try to contact him either. The months passed, and he never did get in touch with us or communicate that he wanted to return. Finally, 8 months later, we decided it was time to terminate him, since he had shown no signs of wanting to come back to work, even if he could. We sent him a letter enclosing the doctor’s report and explaining that we were forced to terminate employment since he could not perform his job, and there was no other job available.
Now Jim is suing us. He claims we did not reasonably accommodate his disability, since we did not engage in an interactive process with him! Do we have any possible defense?
Alcoholism and a Last Chance Warning, Quirky Question # 142
Quirky Question # 142:
I work as an HR representative in a medium-sized California business – we employ about 50 people. Recently, a situation with one of our employees was brought to my attention, and I’ve been asked how to handle it. We have an administrative assistant with an alcohol problem. We have reason to believe that her alcoholism was the true reason behind her excessive absenteeism in the middle of last year. Then, a couple of months ago, she came into work drunk – stumbling around the office and slurring her words. We immediately sent her home, but we didn’t want to fire her at that point. Aside from her alcoholism, she fits in very well with our culture and has a great relationship with her co-workers. We also wanted to be careful to comply with California law regarding “reasonable accommodation” of employees with alcohol problems. So the next day I met with her and offered her unpaid leave to enter an alcohol rehabilitation program. She completed the program, and has since returned to work. However, last week we again started to see signs that her alcoholism may be returning. She was absent Monday through Wednesday, and when I finally called her on Thursday, I could tell by the way she answered the phone that she was drunk. On Friday she came in, and I met with her. She apologized up and down and asked if she could enter rehab a second time. What should we do?
Gabrielle’s Analysis:
[Readers: Set forth below is an analysis of our last West Coast Quirky Question. This analysis was prepared by Gabrielle Wirth. If you have any questions, please do not hesitate to contact Gabrielle at 949.932.3690. Additional information about Gabrielle is available at: http://www.dorsey.com/wirth_gabrielle/. Regards, Roy]
This is an excellent question that arises with disappointing regularity. Before turning to the specific recommendation we would make, let’s review a few of the basics.
As your inquiry illustrates, employers have many reasons to educate themselves regarding their rights and obligations with respect to employees who use drugs or alcohol. For instance, firing an employee for being an alcoholic can subject the employer to discrimination liability under the federal Americans with Disabilities Act (ADA), or California’s Fair Employment and Housing Act (FEHA). This is because alcoholism may be classified as a disability under the ADA if it substantially limits participation in a major life activity, or under FEHA if it merely limits such participation. (In California, the standard has become more generous over time. Prior to 2003, courts had used the same “substantially limits” standard employed under the ADA, but in Colmenares v. Braemar Country Club, Inc., 29 Cal. 4th 1019 (2003), the California Supreme Court found that a condition need only “limit”, and not “substantially limit,” participation in a major life activity in order to be classified as a disability.)
Thus, an employer may not make adverse employment decisions solely on the basis of alcoholism, and must reasonably accommodate employees who have that condition. While many healthcare practitioners believe that both forms of chemical dependency (drug and alcohol) are similar in their effect on the mind and physiology, the law does not always treat drug addiction and alcohol addiction identically. Under state law, physical disability “does not include psychoactive substance abuse disorders resulting from the current unlawful use of controlled substances or other drugs.” However, alcoholism is not excluded from this definition.
Further, the employer’s right to conduct drug and alcohol testing on employees is limited by, and must be balanced against, the employee’s right to privacy. For instance, in Luck v. Southern Pacific Transportation Co., 218 Cal. App. 3d 1 (Cal. Ct. App. 1990), the court held that the right to avoid giving a urine sample is a privacy interest protected by the State Constitution, and that random urine testing is an unconstitutionally impermissible intrusion on that privacy right where there is no compelling interest to justify it. Therefore, drug testing policies must be carefully written to avoid impermissibly broad requirements.
Finally, in California, there is still another reason to pause before terminating an employee for issues related to substance abuse. California Labor Code Section 1025 requires private employers who employ 25 or more employees to “reasonably accommodate” any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program. (Employers are not prohibited from taking action against an employee “who, because of the employee’s current use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others.”)
While the statute does provide that the reasonable accommodation must not impose an undue hardship on the employer, it does not specify what constitutes an undue hardship nor how many times the request to enter rehabilitation must be accommodated. The statistics indicate that rehabilitation is successful only 25-35% of the time. Section 1025 is silent as to whether “once is enough,” potentially implying that an employee could stave off termination indefinitely by repeated requests to enter rehab, which the employer would then be obligated to accommodate.
Introducing the Last Chance Agreement:
One tool that you may wish to consider to limit the potentially indefinite obligation of repeated visits to the rehab center is the Last Chance Agreement (LCA). An LCA is a formal, written agreement between an employer and an employee that allows the employee to remain employed despite misconduct, provided that he meets certain conditions. For instance, the LCA might specify that the employee is being given leave to participate in rehab, but if he doesn’t complete the program, or if he engages in any subsequent misconduct, then he will be fired. Thus, the LCA is literally the employee’s “last chance” to remain employed.
Because of the requirements of Section 1025, there has been some risk that LCAs might turn out to be in violation of the employer’s duty to reasonably accommodate. However, there is also some basis to believe that LCAs are a legitimate aspect of reasonable accommodation.
Case-Law Support for the Enforceability and Reasonableness of Last Chance Agreements:
Although the California case law on LCAs is not plentiful, courts have enforced last chance agreements. For example, in Gosvener v. Coastal Corp., 51 Cal. App. 4th 805 (Cal. Ct. App. 1996), a plaintiff sued his employer alleging that it had failed to reasonably accommodate his alcoholism and had illegally discharged him because of it. The plaintiff had signed an LCA with his employer, and then had violated it. Id. at 809. The California appeals court found that the employer had “properly exercised its contractual rights to terminate [Gosvener’s] employment” since Gosvener had “breached the express terms” of the LCA he had signed. Id. at 814. (Note that the Colmenares decision overturned Gosvener to the extent that it suggested that “substantially limit,” rather than “limit,” was the proper test for identifying a disability. However, the other holdings of Gosvener are not affected by Colmenares.)
The court reasoned that “the employer’s duty to accommodate such a disabling condition [i.e. alcoholism] is not unlimited, and an employer cannot be an insurer of recovery.” Id. at 813. Specifically, an employee “cannot gain yet another last chance despite prior warnings, and cannot stave off discharge indefinitely by attempting to enter into yet another course of treatment after each relapse.” Id. at 811 (emphasis added). Otherwise, the “last chance agreement would. . . become meaningless.” Id. at 812.
Equally helpful to employers was this court’s finding that Gosvener’s breach of contract and covenant claims were without merit, since the LCA constituted an express contract under which the employer was entitled to terminate. The court found that such an express contract supplanted any implied contract between the parties. Id. at 814-15.
There is also federal case law that supports the enforceability of last chance agreements. While such case law is not directly binding with respect to the California Labor Code, it does give some indication of the general attitude towards LCAs, and is persuasive to California courts, particularly given the lack of any contrary California authority. For instance, in Fuller v. Frank, 916 F.2d 558 (9th Cir. 1990), the Ninth Circuit upheld a termination in accordance with the terms of an LCA, noting that reasonable accommodation of alcoholism “must be limited in scope” since “continued ‘accommodation’ would simply enable an alcoholic to continue his or her drinking.” Id. at 561. Fuller pertained to the federal Rehabilitation Act of 1973; yet the Gosvener court had no trouble applying Fuller to California law. It noted: “we may follow Rehabilitation Act cases in the absence of California authority.” Gosvener, 51 Cal. App. 4th at 812 n.1.
The Eighth Circuit has held that LCAs do not violate the ADA, see Longen v. Waterous Co., 347 F.3d 685, 689 (8th Cir. 2003), and a recent district court case, Basso v. Potter, 596 F. Supp. 2d 324 (D. Conn. 2009), found that the express terms of an LCA governed, permitting an employer to terminate an employee for having more unscheduled absences than the LCA permitted.
The Last Chance Agreement as the Final Step in a Process of Reasonable Accommodation:
Despite the fact that there is some case law giving employers a basis to use and rely on LCAs, it remains prudent for your company to err on the side of caution in dealing with alcoholism and other forms of substance abuse in your employees. In each of the cases discussed above, the employer went far beyond simply providing a single last chance agreement to the employee. It is therefore likely that reasonable accommodation with respect to a request to enter rehabilitation goes beyond a single last chance agreement.
For instance, in Gosvener, the employer signed two separate LCAs with the plaintiff, who attended substance abuse treatment programs two separate times before the employer finally terminated him. When the employer initially found out that the plaintiff had both alcohol and methamphetamine abuse problems, it referred him to a private clinic, provided money for treatment by a private physician, reassigned him to a less stressful job position while continuing his higher rate of pay, and cleared him to return to work while undergoing therapy. Even after he violated the terms of the first agreement, the employer still executed a second LCA with him and gave him a second chance to attend another treatment program. Only after the employee violated the second LCA did the employer make the decision to terminate.
In Fuller, the employee was referred to the employer’s in-house counseling program three different times and given leave to participate in both alcohol and cocaine abuse treatment programs on three separate occasions until finally he signed an LCA and was subsequently terminated for drinking on the job.
Finally, in Basso, the employee was given numerous formal letters of warning, and was twice given the opportunity to rehabilitate himself before he finally came back to work under the express terms of an LCA, violated it by numerous absences, and was fired.
As you can see, the facts of these cases suggest that a single Last Chance Agreement, with nothing further in the way of accommodation, may not be sufficient to constitute reasonable accommodation of a substance abuse problem. To the contrary, the employers in these cases were accommodating in many different ways, and allowed problem employees numerous chances at rehabilitation before executing the final LCAs that ultimately gave rise to termination.
Thus, one lesson to take from these cases may be that a Last Chance Agreement is an enforceable component of reasonable accommodation, provided that it really does represent the employee’s last chance at employment given a history of attempts to work with that employee. In other words, the LCA should be one step in a series of attempts to accommodate the employee’s substance abuse disability.
Elements of a Last Chance Agreement:
As explained above, the basic purpose of an LCA is to: (1) provide the employee with one last chance at employment, and on the other hand, (2) strictly define the terms of continued employment and make it clear that any further misconduct will result in termination.
In structuring an LCA, employers should be specific about the types of misconduct that will result in termination. The following are some examples of potential LCA provisions:
(1) that the problem employee successfully complete a substance abuse program;
(2) that the employee will be subject to unannounced drug and alcohol testing for a certain period of time (e.g., two years);
(3) that the employee will be terminated either for failure to participate in unannounced testing, or for a positive test result;
(4) that the employee must maintain an exemplary attendance record without any unverified absences.
The LCA can also be further tailored to encompass the employee’s particular history of misconduct. In general, use of a LCA should provide you an opportunity to clarify your expectations of your employee once and for all, and put your employee unequivocally on notice of the ultimate consequences of his failure to fully correct a history of bad behavior. Repeated rehabilitation efforts do not have to be accepted by your company.
Threatening Behavior — A Mental Health Disability? Quirky Question # 132
Quirky Question # 132:
One of our employees has been very belligerent of late. He has made comments to co-workers that were intimidating and frightening. Some of his co-workers have considered them to be threats of violence and have reported them to our HR group.
HR investigated, corroborated the accuracy of the allegations, and confronted the employee. He basically admitted making the statements, but attributes his behavior to some unspecified mental health disability. We plan to terminate his employment. Is this plan prudent?
Roy’s Analysis:
Your question is very interesting, implicating a number of fundamental aspects of the Americans With Disabilities Act (ADA) and the parallel state anti-discrimination statutes. Further, your question contains within it several issues that warrant your consideration. First, is your employee a “disabled” employee under the ADA? Second, what types of disability claims could be asserted by the employee if your company carries out its plan to terminate his employment? And third, what defenses would your company have to any such claims? Let’s examine each of those issues sequentially.
As noted above, the first question is perhaps the most fundamental – is your employee a “disabled” employee under the ADA? The ADA prohibits discrimination against a “qualified individual with a disability.” In turn, an individual has a “disability” under the ADA if one of three conditions are met: a) he has a physical or mental impairment that substantially limits one or more major life activities; b) he has a “record of” such an impairment; or c) he is “regarded as” having such an impairment.
Here, your employee might have a cognizable disability and might be able to structure his claims based on either on the assertion that he “has a mental impairment” or that he is “regarded as” having a mental impairment. Perhaps your employee is suffering from a mental or emotional disorder (e.g., severe depression or paranoia) that is affecting the way he interacts with his co-workers and is contributing to his threatening behavior. Even if your employee is not suffering from a physical or mental impairment, he nevertheless could assert that he is perceived as (or “regarded as”) someone with a disability. As you described in your question, co-workers complained that his behavior has been “belligerent,” “intimidating,” and “frightening,” and your HR group investigated the situation and corroborated the underlying facts. Arguably, then, he is regarded as an employee who has, charitably described, a “difficult personality.” Again, whether that problem is linked to a cognizable psychological problem can’t be ascertained from your question.
A corollary inquiry when evaluating whether your employee is disabled is – what “major life activity” is substantially limited by the impairment? Somewhat surprisingly, some plaintiffs have made the argument that their inability to interact appropriately with others is itself a “major life activity” under the ADA. Who knew? Other plaintiffs advance a somewhat broader concept that has gained traction in the courts, which is that the disability (be it physical or mental) affects the major life activities of “working or learning.” Regardless of the theory advanced with respect to the “major life function” involved, many courts analyzing these issues have skipped over this issue to assess other critical aspects of a disability claim.
The second basic question referenced above is what types of claims could your employee bring pursuant to the ADA. Essentially, there are three. Your employee could claim disparate treatment. He could contend that you failed to accommodate his disability. Or, depending on what he communicated and when he communicated it, he could claim retaliation. Let me touch briefly on each.
As to the disparate treatment claim, as I have stated in other Blog posts, the key to these types of claims is the concept of differential treatment. This leads to the question of whether you have had any other employees who have engaged in threatening or intimidating behavior and how your company responded in those situations. If you have addressed these kinds of situations in a consistent and balanced manner, adopting a response appropriate to the perceived risk, your company should not have to worry unduly about a disparate treatment claim. Keep in mind too that courts have emphasized that for employees to succeed on disparate treatment claims in disciplinary contexts, the other individuals against whom the comparison is being made must be comparable in “all material respects” (e.g., same type of job, same supervisor, comparable experience, comparable qualifications, same conduct, etc.). Needless to point out, these variables make it difficult for a plaintiff to pursue successfully a disparate treatment claim when it comes to an employer’s disciplinary response to unacceptable conduct.
Another common claim under the ADA is a failure to accommodate claim. It is not clear from your question whether this employee requested any type of accommodation or made any comments that put your company on notice that it needed to engage in the interactive process associated with disability claims. A separate question is whether any accommodation would even be possible, given the nature of the conduct involved here. This will depend on the nature of the job involved, the degree of interaction with co-workers and the public, and other factors bearing upon whether your company could do anything to mitigate the consequences of the intimidating behaviors.
The third type of claim is a potential retaliation claim. Here, I’ll simply reiterate my standard advice to my clients – do NOT convert a weak underlying claim of employment discrimination into a compelling retaliation claim. Time and time again, employers confronting weak and easily defensible discrimination claims take actions that are retaliatory. Then, even if the underlying discrimination claim is dismissed, the retaliation claim will likely survive.
Assuming that your employee institutes litigation and pursues a disability discrimination claim, your company should have a strong defense to the claim based on the employee’s conduct. If your company carries forward with the discharge it is planning as a result of the reasons you described above, your soon-to-be-ex-employee will have to demonstrate that these reasons are a pretext or cover-up for discrimination. This will be a tough hurdle for your former employee. Remember, to show pretext, a plaintiff “must show more than [defendant’s] decision was mistaken, ill considered or foolish, and as long as [the employer] honestly believes those reasons, pretext has not been shown.” See Hague v. Thompson Distributing Co., 436 F.3d 816, 823 (7th Cir. 2006).
Another interesting defense in the context of your question is the concept that under the ADA, an individual is not a qualified individual with a disability if he is a direct threat to himself or others. You may recall that there were a number of these kinds of cases, which arose in the early stages of the AIDS crisis. At that time, there were fewer effective medical treatments for individuals who were HIV positive and there was a high level of public anxiety about what initially was a nearly always a fatal disease. Therefore, cases involving HIV carriers worked their way through the legal system, often examining whether the job performed by the HIV infected employee created a risk for the employee himself/herself or others.
This same analytical framework has applicability to your situation, or any context where an employer is concerned by the risk of workplace violence. If your company can demonstrate (and you have the burden of persuasion on this point) that your employee poses a direct threat to himself or others, he ceases to be a qualified individual with a disability.
Yet a third compelling defense in a context like this is grounded on the distinction between a mental health disability and the behaviors linked to that disability. Think of this issue, for example, in the area of alcohol or drug dependency. Although an employer may have an obligation to accommodate an employee with alcoholism who is receiving treatment, an employer does not have to tolerate an employee who shows up at work under the influence of drugs or alcohol. Analogizing to the fact pattern you described, even assuming that: a) your employee had a cognizable mental health disability; b) that substantially impaired a major life activity; and c) requested an accommodation; your company still would not be obligated to tolerate the behavioral manifestations of his disability in the workplace.
In short, even if you discharged this employee and he sued your company for disability discrimination, it would appear that you would have several persuasive defenses. Of course, your company would not need to advance those defenses if the court concluded that your employee was not disabled under the ADA.
An interesting case that implicates many of the issues addressed above is Bodenstad v. County of Cook, et al., No.08-1450 (7th Cir. June 22, 2009). In Bodenstad, a physician/anesthesiologist at Cook County Hospital claimed that he was fired in violation of the ADA. After approximately nine years of employment with the hospital, Bodenstad was diagnosed with a cancerous lesion on his mouth. When discussing his own health and his fears about his cancer metastasizing, he told a friend that if his health deteriorated, he was going to kill his supervisor and several other physicians. His friend was sufficiently concerned about these comments that she shared them with the Chicago police and the FBI. The police felt that the threats were credible.
The hospital’s initial response was to suspend Bodenstad, with pay, pending a psychiatric evaluation. Although Bodenstad first refused to submit to an examination, he later agreed to obtain treatment at the Professional Renewal Center (PRC), where he completed a five-day multi-disciplinary assessment. The PRC assessment was that Bodenstad suffered from paranoid and narcissistic personality features and “occupational and interpersonal stressors.” Bodenstad agreed to be treated at the PRC for three additional months, at the end of which Bodenstad was directed to continue to treat with a psychiatrist, a directive he disregarded. Not long thereafter, the hospital conducted a hearing involving Bodenstad’s behavior, after which the hospital decided to terminate his employment. After being fired, Bodenstad sued.
The federal district court granted the defendants’ motion for summary judgment and the case was appealed to the Seventh Circuit. The appellate court affirmed the decision. Even assuming that “interacting with others” constituted a “major life activity” and that Bodenstad was “substantially limited” in this activity, the Court of Appeals still found that Bodenstad could not establish a viable ADA claim. Essentially, the appellate court concluded that the hospital’s reasons for discharging the physician were legitimate and that Bodenstad could not demonstrate that the reasons articulated by the defendant for its decision were pretextual. As the court emphasized, “summary judgment was . . . appropriate because Cook County presented undisputed evidence that it fired Bodenstad for threatening his co-workers.” The court also pointed out that “there is no legal obligation to ‘accommodate’ conduct, as opposed to a disability.” The appellate court noted, “The law is well settled that the ADA is not violated when an employer discharges an individual based upon the employee’s misconduct, even if the misconduct is related to a disability.”
Finally, in the area of employment law, employers often are forced to evaluate competing risks. Here, the competing risks are litigation by a belligerent, intimidating, threatening employee who is terrifying his co-workers, or litigation by a co-worker injured by that person, or worse yet, by the co-worker’s estate in the event of his or her death. Which lawsuit would your company rather defend? As I’ve stressed in other Blog posts involving risks of workplace violence, employers cannot be responsible for risks of which they were unaware, but known risks cannot be ignored. Assuming that your investigation corroborated the basic underlying facts and your best judgment is that your employee poses a risk of violence to his co-workers, I think your path is clear.
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