Threatening Behavior -- A Mental Health Disability? 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 of Quirky Question # 132, Mental Health Disabilities and Workplace Violence

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.