That "Difficult To Get Along With" Employee Might Just Be Protected Under ADA
Almost everyone can think of a coworker or subordinate who was just difficult to get along with. He or she argued with people, acted unpleasantly, and was generally someone you avoided.
Now, he or she may just be protected under the ADA. At least accoding to some courts. But not others. How is this possible? I suggest you read
this article by Nixon Peabody. It may take a while to “digest” it, but given how common such employees are, studying the issues may save you many headaches down the road!
The entire article should definitely be read to keep this issue in perspective. There are good lessons to be drawn both from how the company handled the matter and how it was litigated.
Certainly, failure to keep the focus clearly on conduct, not personality traits, can be a mistake. However, mere personality traits are not a disability.
Also, conduct need not be excused by an employer just because it stems from a disability, including a psychiatric one.
My overall impression is that the courts have been very restrictive in cases involving claims of psychiatric disability, perhaps sometimes reflecting a lingering if declining societal bias against the mentally ill.
So I think it would be a rare case indeed in which a “problem employee” could prove a disability, actual or perceived, or discrimination on the basis of a disability (as opposed to legitimate action based on unacceptable conduct) — even if the employee could prove a diagnosis of mental illness.
Having said that, company management and their HR and legal advisers should act conservatively in situations in which it is foreseeable that there may be a claim of disability.
Even if such claims appear unfounded, they can be very expensive to litigate. It is likely the company in the case mentioned has spent hundreds of thousands if not millions in legal fees and expenses.
Following normal disciplinary procedures for documenting and responding to unacceptable conduct, and engaging in the “interactive process” of considering possible reasonable accommodation may either result in a solution that keeps an otherwise valuable employee working or a termination that is so defensible as to discourage any litigation from even being initiated.
What appears to have been one of the company’s big mistakes, based on the article Michael cites, is in the area of reasonable accommodation. Working at home was recommended as an accommodation by several levels of management, and then rejected out of hand by the company president. This may be difficult to defend, although there is case law going both ways on working at home as a reasonable accommodation.
Another concern I have is that in many offices where there is a very difficult employee, others may refer to him or her as being “crazy,” “nuts,” or “having a mental problem.” I would supsect that such statements readily lend themselves to being used of evidence of the employee having a “perceived disability.”
Right on the money, Michael. Recently concluded a case with exactly such allegations.
Although many cases get dismissed on summary judgment for failure to prove disability (actual or perceived), evidence like allegations employees were called “nuts” can prevent employers from achieving this outcome.
This is reason that both preventive HR decisionmaking and litigation strategy must not rely on that defense alone (i.e., no disability), but must be prepared for defending on the merits of the claim — by ensuring and properly establishing in litigation nondiscriminatory treatment and/or satisfaction of the reasonable accomodation requirement.
Gee, did I choose the wrong career?!? Perhaps I should have become an attorney!!!!!
Then again, did you ever hear that joke about lawyers….Oh, I’ll do a posting another day on that.
I MAY BE ASKING SOMETHING YOU CANNOT COMMENT BUT HERE GOES. I AM BEING BULLIED AT WORK BECAUSE I WILL NOT ATTENT MEETINGS IN MY OWN TIME. THEY ARE PROLONGED, COMPLETELY USELESS MEETINGS – NO-ONE EVER THINKS THEM THROUGH PROPERLY AND I INSIST IT SHOULD BE DURING WORKING HOURS – NOT MY DINNER HOUR. I WORK FULL TIME.
MOST OF THE OTHERS ARE PART TIME. I HAVE A DEPENDENT WHO I NEED TO ATTEND DURING MY DINNER HOUR. PLUS EVERYONE NEEDS A BREAK FROM WORK DURING THE DAY. THE MEETINGS ARE FREQUENT AND EVERYTIME I GO THROUGH HELL WHICH IS MAKING ME VERY DEPRESSED. I WOULD POINT OUT THAT WE ARE NOT PAID FOR THIS TIME AND IT IS ALWAYS IN HOUR OWN TIME. DO I HAVE THE RIGHT TO REFUSE ATTENDING A MEETING IN MY OWN TIME IF I SO CHOOSE.
Anonymous –
You didn’t just ask a bunch of lawyers for legal advice, did you? You know they can’t do that. They could get sued!
And, personal favor (ironic request given that I’m posting anonymously), can you try typing with CAPS LOCK off?