For this week’s scenario, let’s take a look at addressing employee misconduct when an employee states the conduct was caused by a mental disorder.
Here’s the situation:
You are a manager for a call center. This morning you received a call from a customer complaining that during a recent call, your employee (John), became threatening, and used vulgarity towards her. You sit down with John to get more details about the situation that occurred. John admits to threatening and being vulgar towards the customer. However, John discloses- for the first time- that he has bipolar disorder, which caused his outburst.
See also: HR Scenario: Hostile Work Environment
How do you handle John’s situation?
First, let’s see if John’s misconduct is protected if in fact it was caused by a mental health issue.
Although the American Disabilities Act prohibits discrimination against people with disabilities in several areas, threats are generally not protected even if caused by a mental health disorder. In most circuits, the employer may discipline or terminate an employee for violating a workplace conduct standard that is job-related and consistent with business necessity, even if the misconduct was the result of an employee’s disability.
For example, in Palmer v. Circuit Court of Cook County; 117 F.3d 351 (7th Cir, 1997), the appeals court ruled that an employee with an alleged mental disorder was not protected after being terminated for threatening to kill her supervisor. In Hamilton v. Southwestern Bell Telephone C; 136 F.3d 1219 (5th Cir. 1998), A court ruled that an employee who struck and screamed profanities at a subordinate was not protected by the ADA, even though he alleged his conduct resulted from his prior Posttraumatic Stress Disorder. In fact, the “mere allegation” that an employee threatened a coworker is a legitimate non-discriminatory reason for discharge.
See also: HR Compliance Checklist
The EEOC stated a similar view in its 1999 publication on Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. In the publication, the EEOC maintained that “An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.”
Overall, most courts have applied the EEOC’s approach and held that the ADA is not violated when an employer discharges an employee for misconduct, even if the misconduct is related to a disability. Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual’s disability. However, it’s important to note that these cases involved forms of violence. There may be situations where an employee is still a “qualified individual” under the American Disabilities Act. An employer must make reasonable accommodation to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship, except where the punishment for the violation is termination.
For situations involving the ADA, reach out to your Client Services Coordinator for guidance or visit https://www.ada.gov/
Mc Donald, J. J., Jr. (2010, March 27). Accommodation of Disability-Related Misconduct Under the ADA: When Is It Required? Retrieved August 30, 18, from https://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2010/2010_eeo_033.authcheckdam.pdf