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.
