I’ve complained before about the lack of guidance for employers dealing with employees who attribute their bad behavior to a disability. The Ninth Circuit’s August 15, 2014 decision in Weaving v. City of Hillsboro (pdf) only adds to the confusion.

The City of Hillsboro, Oregon fired Weaving from his job as a police sergeant after an investigation determined that Weaving “created and fostered a hostile work environment for his subordinates and peers.” [“Hostile work environment” being used in this context to describe bullying and intimidation not related to membership in a protected category.]  Weaving sued claiming that the City fired him because of a disability (ADHD). At trial, he recovered over $630,000 in damages. The City appealed and the appellate court reversed.

The court of appeal drew a distinction between being able to interact with others (which is a major life activity) and being able “to get along with others” (which presumably is not) . Distinguishing this case from precedents where the plaintiffs “were essentially housebound,” the majority concluded that Weaving was not substantially limited in his ability to interact with others. “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile work environment for their colleagues.”

A lengthy dissent argued that, even if the policy rationale made sense, the majority had failed to follow circuit precedent and had usurped the power of the jury to weigh the evidence. (Patrick Dorrian at Bloomberg BNA Employment Discrimination Report wrote a more detailed discussion of the case – with insight and analysis from yours truly – that you can access here (but you’ll need a subscription).)

Copyright: janmika / 123RF Stock Photo
Copyright: janmika / 123RF Stock Photo

The outcome probably would have been different under California law (which interprets “limits” and “life activities” more broadly).

Employers need to tread carefully in deciding whether or how to discipline employees who attribute their bad behavior to a disability. If judges can’t agree on what the law requires, we’re a long way from having a workable standard that employers can use to guide their decisions.