Will Rage Turn to Rampage
A GOOD WORKER FOR 10 YEARS, mail carrier Thomas Lussier began having panic attacks in 1991. After “going out of control” in the workplace, acting erratically, and engaging in verbal outbursts, he was placed on leave. A few days later, two events occurred that caused the post office to change its treatment of Lussier. First, a postal worker in another state killed his supervisor and several coworkers with a gun. Second, one of Lussier’s coworkers submitted a note anonymously, stating that Lussier was at risk for committing violence.
Afraid of another shooting incident, the post office terminated Lussier before he returned to work. Lussier filed a lawsuit, charging that his rights under the Americans with Disabilities Act (ADA) had been violated. The court agreed.
In the case (Lussier v. Runyon, U.S. District Court for the District of Maine, 1994), the court found that the employer’s fear of violence was not legitimate and that it had, therefore, improperly terminated Lussier. The court explained that the post office erred when, rather than relying on specific information about Lussier, it relied on an anonymous note and its own unsupported fear of what Lussier might be capable of doing.
It should be a straightforward matter for management to establish and enforce a workplace violence prevention program. It would seem clear, for example, that an employee who kicks a door, screams profanities, and threatens coworkers and customers with physical harm can and should be fired for violating workplace violence policies.
Unfortunately, it’s not always so simple, as the above case illustrates. Many individuals committing violent incidents in the workplace may suffer or at least claim to suffer from a mental impairment to seek protection under the ADA. In other cases, employees may complain that their employer “perceives” them as disabled because of their mental condition. A company’s response to any threat of workplace violence must, therefore, consider the ADA and its protections.
Generally, the ADA prohibits employers from discriminating against—and requires them to make reasonable accommodations to—qualified individuals with a disability, including those with mental impairments. The ADA specifies, however, that employers are excused from these obligations if the employee poses a “direct threat” to safety in the workplace.
To qualify as a “direct threat,” the employee must pose a “high probability” of “substantial harm.” A speculative or remote risk is insufficient. An employer making this assessment should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.
Generally, it does not violate the ADA to terminate an employee who has assaulted a coworker or poses a significant threat of doing so, even if that employee suffers from a mental impairment. The following three cases illustrate situations in which courts ruled that the employer did not violate the ADA by terminating a mentally impaired employee who had behaved violently.
The first case involved John Adams, a 44-year-old computer programmer suffering from a personality disorder. In the case (Adams v. Alderson, U.S. District Court of the District of Columbia, 1989), Adams sued after he was removed from his job for violently, assaulting a female supervisor, rampaging through the workplace, damaging equipment, and generally destroying the office.
Noting that employers are obligated to accommodate only those workers who are “otherwise qualified” for the position, the court concluded that “One who is unable to refrain from doing physical violence to the person of a supervisor, no matter how unfair he believes the supervision to be or how provocative its manner, is simply not otherwise qualified for employment.” Because Adams’s physical violence rendered him unqualified, the employer did not violate the ADA when it terminated his employment.
In a second case (Hamilton v. Southwestern Bell, U.S. Court of Appeals for the Fifth Circuit, 1998), Douglas Hamilton worked without incident for 20 years. However, after rescuing a drowning woman, he began to suffer from posttraumatic stress disorder (PTSD). Hamilton was fired after engaging in an afternoon of violent behavior in which he slammed a door, slapped the hand of his female manager, and yelled a string of profanities at her. The company also received an anonymous letter from Hamilton’s department describing him as “disgusting, dangerous, and abusive.”
The court of appeals upheld the judge’s finding that the employer acted properly, observing that the “ADA does not insulate emotional or violent outbursts blamed on an impairment.”
In the third case (Roeber v. Dowty Aerospace Yakima, Washington State Court of Appeals, 2003), Donald Roeber had been employed with his company for eighteen years, during which time he was competent, received regular promotions and salary increases, and generally worked well with others. Then his behavior changed; he became violent, first kicking a door, then threatening another employee who tried to calm him after the supervisor reprimanded him. Roeber was fired.
During the ensuing investigation, Roeber admitted that he was so mad he could have killed someone. But he went to court to challenge his termination.
Again, the court sided with the employer, finding that the company offered compelling evidence that it terminated Roeber for violating its policy prohibiting “horseplay, intimidation or coercion” of coworkers, not because of his mental impairment, if any.
Threats of Violence
If an employee has merely threatened, but not engaged in, violent behavior, the employer must assess the significance and severity of the threat. Threats unaccompanied by violent conduct must be evaluated carefully on a case-by-case basis.
A one-time, minor threat offered in jest may not rise to the level of a direct threat. On the other hand, a series of threats, a one-time serious threat, or a threat made with any other indication that potential harm will likely occur may satisfy the test for a direct threat, alleviating the employer’s need to accommodate a mental impairment.
Employers can safely fire an employee who has only threatened violence if they rely on objectively reasonable information suggesting that to leave the threat unaddressed would lead to violence. Again, some cases illustrate this principle.
In the first case (Blanton v. Prestolite Wire Corp., U.S. Court of Appeals for the Eighth Circuit, 2000), Charles Blanton had never acted violently, but he was fired for making a series of threats—to “take out” certain coworkers who he thought had wronged him and to “blow away” the firm’s workers’ compensation carrier. He was also seen brandishing a gun and threatening suicide.
Branton challenged the action in court. The court had no problem finding that although Blanton had not yet acted on his threats, the employer was justified in terminating him. In a one-page opinion, it found that the employer had a legitimate, nondiscriminatory reason for firing Blanton—it believed he was a serious threat to its employees. The court added that Blanton presented no evidence to show that the reason was a pretext for disability discrimination.
In another case (Calef v. The Gillette Co., U.S. Court of Appeals for the First Circuit, 2003), Fred Calef had several angry exchanges with other employees during his seven years with the company. The company had given him numerous warnings, including a “final” warning after Calef screamed at and lunged over the desk at a 60-year-old woman, threatened to punch her in the face, talked nonsensically, and generally instilled fear in his coworkers. When his threatening behavior continued, he was discharged.
Calef filed a lawsuit claiming that his behavior was caused by a mental impairment and that his ADA rights had been violated. The court of appeals upheld the judge’s ruling in the company’s favor, finding that Calef’s job required him to handle stressful situations without making others in the workplace feel that their own safety was threatened. If he could not do so, he was not qualified for the job, and the employer did not violate the ADA by terminating him.
In another recent case (Buie v. Quad/Graphics, Inc., U.S. Court of Appeals for the Seventh Circuit, 2004), Anthony Buie yelled at his supervisor and pushed merchandise off a conveyor belt, then threatened a female coworker who had witnessed the tirade, putting his face close to hers and yelling, “I’ll get you bitch!” He then called the coworker’s house and warned that if something happened to her, “it’s her own fault.” The company fired Buie for his actions.
Buie filed a lawsuit, claiming his employer fired him because he had AIDS. The court disagreed, finding that the employer offered ample evidence that it terminated him because of his violent conduct.
Employers should use caution when asking an employee who has merely threatened violence to submit to a psychological examination. Such testing should be required only if the employer first documents what led the company to inquire about the employee’s ability to safely perform the job. The emphasis must be on safety; merely annoying behavior or perceived inefficiencies will not suffice. If the employer requires an evaluation, it should select a healthcare professional with appropriate expertise.
Requiring an employee to undergo a psychological examination potentially implicates two portions of the ADA: the prohibition of discrimination against an employee the employer “perceives” as being disabled, and the restriction of medical examinations.
Perceived as disabled. The “perceived as” dilemma arises out of the text of the ADA itself, which not only prohibits employers from discriminating against qualified individuals with a disability, but also prohibits discrimination on the basis of a “perceived” disability. An employee who has been asked to undergo a psychological evaluation may allege that his employer perceived him as disabled.
Limiting exams. The text of the ADA also limits medical examinations. Generally, an employer may require a medical examination of an existing employee only if the exam is job-related and consistent with business necessity. The Equal Employment Opportunity Commission (the federal agency charged with implementing the ADA) suggests that an employer may require an employee to be examined by a healthcare professional (which the employee can select) based on a belief that the employee may be a direct threat to others, but the belief must be based on an assessment that is individualized and not based on general assumptions. The following cases illustrate how courts apply these principles.
In the case of Sullivan v. River Valley School District (U.S. Court of Appeals for the Sixth Circuit, 1999), Richard Sullivan attended a meeting of the River Valley School District, where he had been teaching for almost twenty years. He disrupted the meeting, shouted obscenities, and shoved papers in a board member’s face. He ignored orders to stop, issuing such threats as, “You’ll be sorry for this” and “You will regret this.”
Concerned about his behavior, the board asked Sullivan to submit to a mental fitness-for-duty exam before returning to the classroom. When Sullivan refused, he was fired.
He then sued the school district, alleging that its request for a psychological evaluation revealed that it unlawfully perceived him as having a mental disability. The court disagreed, reasoning that employers must be able to determine the reason for an employee’s poor job performance (the meeting was considered a function of his job).
In another case (Manson v. General Motors Corp., U.S. Court of Appeals for the Seventh Circuit, 2003), William Manson’s coworkers thought he was behaving in a “crazy” manner that caused them to fear for their safety. The company investigated and required Manson to submit to a psychological evaluation, which he did. The professional evaluation resulted in a finding that Manson did not present a threat to the workplace. He was subsequently allowed to continue working at the company without restriction.
Manson nonetheless sued, alleging that his employer perceived him as being disabled. The court disagreed, finding that the company had a good reason for ordering the evaluation and that it has legal justification in doing so.
Testing After Treatment
If an employee takes time off to receive mental-health treatment, a company can require the employee to take a psychological exam before returning to work, only if the employer needs the information to legitimately assess whether the employee may safely return to work.
That was the case at CIGNA Healthcare (Cody v. CIGNA Healthcare of St. Louis, Inc., U.S. Court of Appeals for the Eighth Circuit, 1998). The company was concerned that Carol Cody, one of its nurses, could become violent because she had begun acting strangely and talked about carrying a gun. The company placed Cody on medical leave and required her to submit to a psychological examination before returning to work.
Cody filed a lawsuit. The Eighth Circuit Court dismissed her claim that Cigna improperly perceived her as disabled, finding that, “A request for an evaluation is not equivalent to treatment of the employee as though she were substantially impaired.” The court went on to state that “Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims.”
One of the major goals of the ADA is to prevent employers from acting on the basis of unfounded fears or suspicions about harmless but abnormal behaviors that might accompany a mental condition, such as Tourette’s syndrome. Employers faced with nonviolent behavior should not assume that the employee may be dangerous.
Unless a mental health professional looking at all the facts can reasonably predict that violence may result, management should treat employees as though they are otherwise qualified and attempt to accommodate the mental impairment, if any.
Robert Stradley faced a similar situation (Stradley v. LaFourche Comm., Inc., U.S. District Court for the Eastern District of Louisiana, 1994). Stradley, who suffered from acute anxiety and depression, was terminated because his supervisor assumed that the condition made Stradley potentially violent.
Stradley filed a lawsuit. The court denied the employer’s motion to dismiss Stradley’s case, finding that a reasonable juror could conclude that the supervisor unlawfully regarded Stradley as disabled. The supervisor’s mere “belief” was insufficient evidence that Stradley could not safely perform the essential functions of his job.
In this case, the court warned, “To permit employers carte blanche to terminate employees with mental disabilities on the basis of any abnormal behavior would largely nullify the ADA’s protection of the mentally disabled.”
The ADA not only protects employees from discrimination based on their own disabilities; it also protects employees from discrimination in the workplace based on the disability of a family member or associate. As with employees themselves, however, if the family member or associate presents a danger to the work force, the employer may take appropriate action to reduce or eliminate the threat of violence from that person.
Consider the case of Howard Den Hartog (Den Hartog v. Wasatch Academy, U.S. Court of Appeals for the Tenth Circuit, 1997). Wasatch Academy required its teachers, including Den Hartog, to reside on campus. After several uneventful years, Den Hartog’s son was diagnosed with bipolar affective disorder. Over time, the son made various threats, including threats to slit his wrists and harm the headmaster’s family.
Despite the school’s request that Den Hartog keep his son away from the campus, the visits continued. After a particular incident during which the son broke a former schoolmate’s ribs and threatened to “get” the headmaster, the school fired the father. Hartog filed a lawsuit against the school, claiming that his ADA rights had been violated.
The court found that the school was justified in terminating Den Hartog because it believed the threat of violence from his son to be grave, severe, imminent, and ongoing. In its decision, the court stressed that the school’s conclusion was based on an “individualized assessment” of the son, rather than on any predetermined or unfounded general stereotypes about people with bipolar affective disorder.
Congress passed the ADA to protect employees from discrimination because of a physical or mental impairment. Employers must balance those protections with their responsibility to protect other workers against potential harm on the job. Knowing how the law applies to workers who exhibit or threaten violent or potentially violent behavior is important if companies are to have effective and legally enforceable workplace violence prevention programs.
Karen Karr is special counsel in the Phoenix office of Steptoe & Johnson LLP, where she represents employers in labor relations and employment matters.