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If your job makes you want to kill yourself, are you a
"direct threat" to your own safety?
In what has to be one
of the weirdest ADA cases I've seen, a woman (let's call her
"Gladys") was hired as a temp for a tech company in Seattle (let's
call it "Initech").
A month later, Initech brought Gladys on as a regular employee. A month after
that, Gladys told Initech that she suffered from chronic pain. Initech was
like, hey, no problem, we will try to accommodate you.
Um, yeah. That'd be terrific.
Gladys was put on a reduced schedule and was eventually
authorized to return to work full-time. Initech assigned her to a shift that
ran from 6 a.m. to 3 p.m. Gladys didn't care for those hours. She
told a manager that the schedule was stressing her out and depressing her. Then
she sent the manager a Facebook message and said that she was spending the
whole day at work trying to think of ways to . . . kill herself.
Because Gladys's suicidal ideations were related to her
job, Initech (reasonably) determined that she might be a "direct threat"
to her own safety if she continued to work there. She claimed in other postings
that she had "PTSD*" and felt like her workplace was a "war
*Post-traumatic stress disorder
I don't believe I've ever posted about the "direct
threat" defense under the ADA. If an employee's disability causes him to
be a "direct threat" to himself or others, it might be lawful for the
employer to take appropriate action "against" the employee. For
example, the employer might be able to refuse to hire, or to require an
employee to take a medical leave, or even to fire an employee.
Or it might not be able to do any of those things. If a
reasonable accommodation would eliminate or reduce the direct threat, then the
employer would have to try to accommodate.
In determining whether an applicant or employee poses a
"direct threat," employers and their medical consultants should
consider the duration of the risk, the nature and severity of the potential
harm, the likelihood that the harm will occur, and the imminence of the risk.
Here endeth the lesson.
So Gladys said on Facebook that her job made her want to
kill herself. What's Initech supposed to do with an employee like this?
You can almost see the
wheels turning in Lumbergh's head. "Um, yeah . . . maybe we can turn from
'Dr. Jekyll' into 'Mr. Hyde,' and shake her that way. Yeah, that'd be
"Gladys, mmm, yeah, come in. Take a
seat. Can we bring you a cup of coffee? Now, mmm yeah, Glads, we are a little
concerned about bringing you back to work, since this job makes you suicidal.
But the ADA requires that we engage in an 'interactive process.' So we would
like to engage in the 'interactive process' with you. That'd be terrific."
"Sure! What does that mean, and what do
I have to do?"
"Well, mmm, yeah, we need for you to
engage in the interactive process with us."
"Well, mmm, yeah, we need for you to
engage in the interactive process. And if you don't, we'll repossess your red Swingline
"OK! What does that mean, and what do I
have to do?"
"Mmm, well, sorry, but since you didn't
cooperate in the interactive process, we're taking your red Swingline and
firing you. Thaaanks."
*THE ABOVE MAY NOT HAVE ACTUALLY HAPPENED.*
So, Gladys sues, and at some point, both sides move for
summary judgment. The court denied Gladys's motion (no surprise there). But the
court denied Initech's motion, as well.
The court said that a jury should decide whether Gladys
refused to engage in the "interactive process," which would result in
the loss of her protection under the ADA, or whether Initech was to blame.
Gladys argued that Initech was deliberately setting her up for termination. On
the other hand, the court recognized that Gladys might not be, how you say,
fit to work. All that is for the jury to decide.
So, the moral of the story is, passive-aggressive tactics
are generally a bad policy and don't help employers. In fairness, Initech might
not have known what "the interactive process" was either, and was
muddling through it with difficulty but in good faith. The jury will -- yeah,
you know. In case you might have forgotten, the ADA "interactive
process" is fancy-lawyer-talk for a discussion between employer and
employee about reasonable accommodation options. That's really about all there
is to it.
A few good links: Eric
Meyer of The Employer Handbook has a post
about a plaintiff who managed to get a court order allowing discovery of the
defendant's Facebook page, which is the reverse of what we usually see. And, if
you haven't already been there, please get over to Phil Miles' excellent blog, Lawffice
Space, for the March
Employment Law Blog Carnival -- with a Saved By the Bell theme!
Phil, thank you for letting us participate. Finally, many thanks to HR
Examiner, which named Phil and me as two of their Top
25 Online Influencers for 2012!
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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