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Don't answer this question out loud but...do you have any bullies in your workplace? If so, I think this case might be of interest to you and to all employers and managers. If not, note that May is Mental Health Awareness month so this case is a timely illustration of employers' obligations under the Americans with Disabilities Act (ADA).
You likely already know that the ADA, which covers employers with 15 or more employees, prohibits discrimination against an individual with a disability. A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities (MLA). The EEOC and some courts have taken the position that the "ability to interact with others" e.g., getting along well with others is a MLA.
So back to the case. An employee had been diagnosed since the age of eight with myriad disorders that adversely impacted her ability to interact with others. She and her management team had a few conversations about her poor work performance. When the employer finally fired her she hit them with the ADA trifecta: (1) discrimination; (2) retaliation; and (3) failure to provide reasonable accommodation. Once again, if you find these issues confusing so do the courts. The decision of the 4th U.S. Circuit Court of Appeals (covering MD, VA, WV, NC & SC) pulled a complete 180 on the lower court, reversing the lower court's ruling of summary judgment on all three counts in favor of the employer! Why? Consider the following.
There is an important distinction, although not always clear between having the ability to do something and being held accountable for doing it. Far too often I get questions about how to manage (around) bullies in the workplace. And more often than not the question is about a bully boss. Generally, the issue is not whether that person has the ability to act with civility. The question is more often when an employee has the ability but either chooses to be a bully or acts without regard to civility and bullies others then what do we do?
So let's look briefly at each of the three claims and find some practical application.
Disability Discrimination? The court noted that a person does not have to live as a "hermit" to demonstrate that they are disabled in their ability to interact with others. The fact that the employee had disclosed this problem and the employer was aware of her expressions of concern were enough to establish sufficient evidence to make the issue triable. And (my HR Peeps will love this) the court found no documentation in the employee's HR file indicating any performance issues, giving rise to a reasonable inference that perhaps the medical condition was, in fact the cause for the discharge.
ADA Retaliation? The employee sent an email to her immediate supervisor asking for a reasonable accommodation, including training to transfer to another position. The supervisor told her only the manager could make that decision. So the employee forwarded her email to the manager who was out on vacation. When the manager returned she received a report that the employee had been sleeping on duty. The next day the manager called the employee into a meeting and fired her. Later the manager contended that she did not read the employee's email while she was on vacation and not until after the discharge meeting. Ever heard, "timing is everything" or "appearance is everything." Well, they sure can make an impact. The request for accommodation was so close to termination it sure gave the appearance of retaliation. And the employee's email was found printed and lying on the manager's desk immediately before the discharge meeting. That sure made it appear reasonable that the manager either could have or should have seen the employee's request prior to the meeting.
Failure to Provide Reasonable Accommodation? Possible strike #3 said the 4th Circuit. Even if the manager did not know about the email request the supervisor did. The supervisor even had a brief discussion with the employee. The supervisor was a link and should have ensured that request was addressed before any adverse employment action was taken.
Lessons Learned?
- Document, document, document. If you have zero documentation regarding unsatisfactory work performance (conduct, attendance, punctuality, etc.) it will be difficult to demonstrate that was your reason for termination was for anything other than some unlawful, discriminatory reason. So listen to your HR representatives. When they ask you for documentation they're just the messenger speaking on behalf of myriad third parties (federal and state agencies, courts, plaintiffs' attorneys) who will ask you for it if HR doesn't.
- Train! Be sure every person who supervises even one employee understands the important role he or she plays as an agent of your company. The supervisor's (in)action can create liability for the company, and sometimes for the supervisor as an individual. So keep the company safe and your individual supervisors safe - well safer at least.
The ADA continues to be a hot topic and national Mental Health Awareness Month seems to be a great time to provide some updates. So join this month's webcast, "ADA Updates." Just click here for more information or to register. $49 pp. Want your management team to attend? Click here for group rates.
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