Jordan Walsh
By Jordan Walsh
The Americans with Disabilities Act (the “ADA”) generally prohibits employers from taking adverse employment actions against an employee because of the employee’s disability. To challenge an employment action under the ADA, a plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) she is qualified for her position, even with her disability, with or without a reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. See Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015). If this showing is made, the burden shifts to the employer to present a legitimate, nondiscriminatory reason for the employment action. See Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). If the burden is met the plaintiff must establish that the employer’s reason for the adverse employment action was pretextual. See id.
Some Ninth Circuit cases have held that “[c]onduct resulting from a disability is considered to be part of the disability, rather than a separate basis for [adverse action].” See e.g. Mayo, 795 F.3d at 946; Humphrey v. Memorial Hospitals Association, 239 F. 3d 1128 (9th Cir. 2001); Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). Therefore, before taking an adverse employment action against an employee with a disability, it would be prudent for employers to evaluate whether the employee is a “qualified individual with a disability,” and if so, whether the conduct at issue is potentially attributable to the employee’s underlying disability. Generally, employers must tolerate “eccentric or unusual conduct caused by [an] employee’s . . . disability, so long as the employee can satisfactorily perform essential functions of [her] job.” Lockhart v. Marietta City Sch., 2021 U.S. App. LEXIS 30991, *29 (6th Cir. Oct. 15, 2021) (quoting the decision in Chandler v. Specialty Tires of Am. (Tennessee), Inc., 134 F. App’x 921, 929 (6th Cir. 2005)). Furthermore, “disability-related conduct that is not related to work performance and does not violate some work-place or societal rule” cannot establish a basis for an employer’s adverse employment action. See id. Accordingly, employers should consider engaging in the ADA’s interactive process before taking adverse employment actions against employees with disabilities. Sometimes, taking adverse employment action against an employee with a disability based on perceived misconduct may expose employers to liability.
That said, in Mayo v. PCC Structurals, the Ninth Circuit Court of Appeals established that “an essential function of almost every job is the ability to appropriately handle stress and interact with others.” See Mayo at 944. On this basis, the Mayo Court concluded that an employee who was unable to appropriately handle stress, leading to violent outbursts toward his co-workers and threats of violence against his supervisors, could not show he was qualified for his position. See id. The Court expressly stated that “[a]n employee whose stress leads to serious and credible threats to kill his coworkers is not qualified to work for the employer, regardless of why he makes those threats.” Id. at 944-45. This ruling established that an employer could take an adverse employment action against an employee who engaged in threatening conduct, even if the conduct was caused by the employee’s underlying disability.
In a recent unpublished decision, Lee v. L3Harris Technologies, Inc.., the Ninth Circuit further clarified the scope of its decision in Mayo. 2023 U.S. App. LEXIS 21704 (9th Cir. Aug. 18, 2023). In Lee, the Court indicated that where threats of violence are related to an underlying disability, they must be sufficiently serious, detailed, and credible. See id. Although Lee is not a published opinion, it is important because it suggests that the Ninth Circuit Court of Appeals will not find an employee “unqualified” for his or her position simply because the employee has difficulty handling stress, and as a result, makes threats of violence in the workplace. See id.
As always, any threat of violence must be taken seriously. When a threat is issued, employers should take immediate steps to secure their workplace. Thereafter, threats should be documented, and a determination should be made as to whether the threats are credible. However, based on the foregoing, where an employee with an underlying disability making it difficult for them to cope with stress makes a threat, employers should carefully review the situation. Before taking an adverse employment action, employers should evaluate the threat to determine whether it is both serious in nature and credible. Employers will also be well-served to seek legal counsel on how to handle these difficult issues.
