There’s a section of the Americans With Disabilities Act that lists conditions that are excluded from the definition of disability. The list includes compulsive gambling, kleptomania, pyromania, pedophilia, exhibitionism, and voyeurism. I assume that the list arose from legislative debates about what horrible things would happen if employers had to accommodate disabled individuals. Would they have to hire kleptomaniacs to run cash registers? Pyromaniacs to fight fires? Pedophiles to work in daycare centers? I always assumed that this statutory language was added to quell those concerns. Or maybe these are just the groups that had especially weak lobbies. After all, the blind get an extra tax deduction, while compulsive gamblers can’t even ask for accommodation.
But beyond the conditions specifically excluded from the ADA’s definition of disability, there are many others that affect behavior. As a result, there are times when employees accused of misconduct attribute their bad behavior to a disability. Until recently, there has been surprisingly little to guide California employers in handling those situations. Wills v. Superior Court of Orange County (pdf) (filed April 13, 2011) takes a first, tentative step in addressing employers’ duties in dealing with bad behavior caused by a disability.
Wills, a court clerk, suffered bipolar disorder. During manic episodes, she could become irritable and aggressive, to the point of shouting inappropriate and threatening comments. For example, after waiting outside for several minutes to be buzzed into an Anaheim Police Department lockup facility, Wills angrily swore and yelled at co-workers, threatening to add them to her “Kill Bill” list. Wills initially denied making the comments, then later said she was joking. Shortly thereafter, she began a medical leave of absence.
During that leave, she forwarded a video clip (described in the opinion as a ringtone) to certain co-workers. While displaying the character Buckwheat from the Little Rascals, a shrieking, increasingly angry voice swore at the recipients and threatened to “blow this bitch up” if they didn’t check their messages immediately. She followed that up with some rambling e-mails that referred to the ”evil bitches” who called the police about her and described how God had promised her vengeance. Wills admitted forwarding the video clip (which she again described as a joke) and claimed not to recall the e-mails. After investigating the facts, the court terminated Wills employment for threats and poor judgment.
Wills sued, claiming that this was disability discrimination because the bipolar disorder caused the behavior in question. The court, her employer, argued that it was entitled to take corrective action to address threats of violence regardless of any disability. The trial court granted the employers motion for summary judgment and the court of appeal affirmed.
The appellate court noted that no California case had addressed whether the Fair Employment and Housing Act “equates disability-caused misconduct with the disability itself” and described some of the arguments for and against such a proposition. On the one hand, the ADA (which the court looked to for guidance) specifically allows employers to hold alcoholic or drug-abusing employees to the same performance standards as others. By citing that instance where disability-related behavior need not be tolerated, was the legislature implying that it had to be tolerated in other situations? On the other hand, an interpretation from the Equal Employment Opportunity Commission states that an employer is free to discipline a disabled employee for violating a “workplace conduct standard” if it is job-related and consistent with business necessity, even if the misconduct resulted from a disability.
Ultimately, the court in Wills focused on the facts before it in holding that an employer can take corrective action to address disability-related misconduct “when the misconduct includes threats or violence against coworkers.” The court expressed no opinion on an employers ability to address disability-related misconduct that did not involve threats or violence. It also pointed out that, since Wills never requested reasonable accommodation, it was not dealing with a situation where the misconduct could be addressed through accommodating the employee.
So, many questions remain for employers trying to address disability-related misconduct. But where the behavior involves threats or violence, and an accommodation isn’t necessarily available, the employer’s duty to provide a safe workplace trumps its duty to accommodate mentally disabled employees.