by Stephen J. Cabot, Esq. and Michel Lee, Esq.
Since the passage of the Americans with Disabilities
Act (ADA) in 1990, designed to protect the mentally and the physically
disabled, employers have been confused and even alarmed, over how
it affects their ability to deal with mentally impaired employees.
Do employers risk liability for firing employees
who function poorly or engage in disturbing, disruptive, possibly
even threatening, behavior in the workplace? Before answering, it's
important to put the ADA into perspective:
Who Is Mentally Disabled?
The ADA does not define mental disability. EEOC
regulations describe mental impairments as “any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional
or mental illness, and learning disabilities.“ However, such
conditions must be severe enough to substantially impair one or
more of an individual's “major life activities“ to constitute
a disability.
How the Courts View Mental Illness
Mental illness and emotional disorders have been
dealt with inconsistently by the courts. Some courts have ruled
that employees with established diagnoses of recognized psychiatric
conditions — major depressive and anxiety disorders, bipolar disorder,
schizophrenia, etc. — should be given the benefit of the doubt.
These courts leave it to a jury to decide whether a condition is
severe enough to be a disability.
Other courts (the majority) require employees
to demonstrate that their conditions are:
1. chronic
2. keep them from functioning fully
This split in judicial thinking has left employers
with little guidance on how to identify which employees may be protected
by the ADA. The best approach to take, accordingly, is to assume
that any worker who might reasonably be viewed as mentally disabled
is covered by ADA.
Can Employers Fire Mentally Disabled Workers
Who Are Disruptive, Violate Work Rules or Fail to Meet Work Standards?
One thing is absolutely clear under the ADA: A
worker who is mentally disabled cannot be fired because of prejudice
or stereotype-based assumptions about how he may function or what
he might do.
For example, an employee with autism cannot be
discharged because fellow workers (or even customers) are made uncomfortable
by his inappropriate gesticulation or comments. A worker with paranoid-schizophrenia
cannot be fired because the employer surmises that any such individual
poses a threat to company safety.
An employer will usually be able to mount a solid
defense against an ADA claim if an employee has engaged in consequential
infractions of important work rules (as opposed to simply breaking
protocol) or seriously disrupts the workplace:
- The ADA does not require work become a nightmare for other employees.
- Workers who are unable to interact with others (assuming interaction
is part of the job), who regularly have hostile outbursts, or
who menace others will not be protected, even where such behaviors
are uncontrollable manifestations of genuine mental disabilities.
In such cases, courts find employees are not qualified to hold
their jobs.
What About Employees Who Cannot Meet Work Standards?
This is a trickier issue:
- If the employee is utterly unable to perform the essential functions
of his job or poses a hazard to other workers or third parties,
he will be deemed not qualified.
- If the employee is simply performing below par because of a
known disability, the employer will more than likely have a legal
obligation to accommodate him.
Click here for Part 2 on
Mental Disability in the American Workplace.
Stephen J. Cabot is chairman of the Employment
Law & Labor Relations Department of the Philadelphia-based national
law firm of Harvey, Pennington, Herting & Renneisen, LTD. He
is the author of the bestselling book Everybody Wins! Michel Lee
is an associate in the New York office.
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