The Ninth Circuit Clarifies an Employer’s Ability to Discipline a Mentally Impaired Employee
Who Violates Work Rules Regarding Threats
By Brenda Bannon
The Ninth Circuit has provided some clarity for employers who struggle with the appropriate response to violation of workplace rules by employees who are struggling with diagnosed mental health issues. Mayo v. PCC Structurals, Inc., 795 F.3d 941, 943-47 (9th Cir. 2015). Prior Ninth Circuit analysis of ADA accommodation in this context has left employers in Washington State and elsewhere feeling constrained from taking substantial adverse employment action. In Mayo, the Ninth Circuit affirmed the employer’s decision to terminate employment despite the claim of disability discrimination. The court concluded that an employee whose stress leads to violent threats is not a “qualified individual” for purposes of disability discrimination analysis.
Because the employee at issue had made explicit workplace threats, the court determined that Mayo was not a “qualified individual” with a disability, because “appropriately handling workplace stress and interacting with others” is an essential function of “almost every job.” Mayo at 944. As a result, the court concluded that Mayo failed his first step of proving his disability discrimination case. In its conclusion, the Ninth Circuit explained its rationale under the Oregon disability statute as follows:
Depression and mental illness are serious problems that affect millions of Americans, including many lawyers and judges. We do not minimize the struggles of those who suffer from these ailments or suggest that all such individuals are incapable of working. But we disagree with Mayo that employers must simply cross their fingers and hope that violent threats ring hollow. All too often Americans suffer the tragic consequences of disgruntled employees targeting and killing their co-workers. While the ADA and Oregon disability law protect important individual rights, they do not require employers to play dice with the lives of their workforce. We thus conclude that PCC's actions in this case were lawful.
Mayo at 947 (construing the state law consistent with the legal framework of the Americans with Disabilities Act modeled by the Oregon statute). According to the Ninth Circuit, termination of employment was appropriate in light of the seriousness of the workplace threats. Id. at 946-47.
The threats at issue were as follows:
He told one that he “fe[lt] like coming down [to PCC] with a shotgun an[d] blowing off” the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur. Mayo told another co-worker on several occasions that he planned to “com[e] down [to PCC] on day [shift] ... to take out management.” He told a third co-worker that he “want[ed] to bring a gun down [to PCC] and start shooting people.” He explained that “all that [he] would have to do to shoot [the supervisor] is show up [at PCC] at 1:30 in the afternoon” because “that's when all the supervisors would have their walk-through.”… When asked [by an HR Manager] if he planned to carry out his threats, Mayo said that “he couldn't guarantee he wouldn't do that.”
Mayo at 942-43. The court considered these threats as “extreme.” Id, at fn. 4. Analyzing these specific threats, the court emphasized as follows: “And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions (here, at least five times).” Id at 944.
Explaining its decision, the Mayo court emphasized that its result is consistent with prior Ninth Circuit precedent analyzing ADA accommodation requirements where the violation of the work rule results from a mental health disability.
This ruling is consistent with our cases holding that “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1139–40 (9th Cir.2001) [obsessive compulsive disorder]; see also Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1094–95 (9th Cir.2007)[bipolar disorder]; Dark v. Curry County, 451 F.3d 1078, 1084 (9th Cir.2006)[uncontrolled epileptic seizures]. Unlike in Humphrey, Gambini, and Dark, we do not need to consider whether PCC has offered a legitimate, nondiscriminatory reason for terminating Mayo, as he has failed to establish a prima facie case at step one of the McDonnell Douglas framework. Our holding is also consistent with the facts and arguments made in those cases.
Mayo at 946-47 (bracketed description added). The Mayo court emphasized that in these prior cases the employer had not argued that a workplace stress reaction was such that it rendered the employee “not a qualified individual” for disability discrimination analysis.
The Mayo court cited the EEOC for support in addition to authority from other circuits. Id. at FN 2. (U.S. Equal Emp. Opportunity Comm'n, EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997)… (advising that an employee who “has a hostile altercation with his supervisor and threatens the supervisor with physical harm” is “no longer a qualified individual”)).
Previously, the Washington Supreme court adopted the Ninth Circuit’s restrictive language in a case involving allegations of discrimination in response to an employee’s PTSD and depression. Riehl v. Foodmaker Inc., 152 Wn.2d 138,152, 94 P.3d 930 (2004) (“Further, even if Riehl’s performance decreased, this may have been based on his disability. Conduct resulting from the disability (e.g., decrease in performance) is part of the disability and not a separate basis for termination. Citing, Humphrey at 239 F.3d 1128, 1139–40). Weighing in on the issue under Washington law in the aftermath of the Gambini case, in 2007 the Human Rights Commission issued guidance on the issue of mental-health-related workplace rule violations:
Most other courts have held that an employer does not need to tolerate misconduct by an employee in the workplace, even if that misconduct is caused by the employee’s disability. In Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), the U.S. Supreme Court determined that a company’s policy against rehiring persons who previously violated a work rule, even when the violation occurred due to a disability, was a legitimate, nondiscriminatory reason for refusing to rehire an individual. … On the one hand, the Gambini decision can be seen as an odd ruling by one Court in one Circuit. However, employers should be aware that decisions of this nature could be a trend in the Ninth Circuit and in Washington. Employers should take care to exercise caution when making disciplinary decisions regarding employees whose conduct may be due to disability. If the misconduct resulted from a disability, the employer must be able to demonstrate that the conduct rule is job related and consistent with business necessity.
http://www.hum.wa.gov/Documents/Guidance/Gambini.doc.
In response to claims of disability discrimination following the Mayo decision, there are a few takeaways for the employer under the current state of the law in Washington State, and for those employers otherwise governed by the Ninth Circuit:
Not a qualified individual. If the facts at issue are as egregious as those found in the Mayo case, the employer may be able to argue the employee is not a qualified individual with a disability, and therefore there is no discrimination for taking an adverse employment action in response to work rule violations.
Illegal drug use or alcohol abuse. The employer can also evaluate whether the misconduct is the result of illegal drug use or alcohol abuse. The Ninth Circuit in Humphrey recognized that employees who abuse alcohol or use illegal drugs may be held to the same disciplinary standards as other employees.
Egregious and criminal. If the misconduct is “egregious and criminal,” the Ninth Circuit in Newland recognized such as a basis to discipline and not accommodate. Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.1996) (“Attempting to fire a weapon at individuals is the kind of egregious and criminal conduct which employees are responsible for regardless of any disability.”).
Direct threat. The employer can also evaluate whether the misconduct poses a “direct threat” to the health or safety of others. Unsafe behavior (falling asleep, or disregarding the likely occurrence of a seizure) while operating vehicles or equipment may fall within this exception, depending on the seriousness of the threat. However, the Ninth Circuit in Dark maintained that safety standards may have to be modified as a reasonable accommodation in order to allow a disabled employee to meet them.
Undue hardship. In every fact pattern it is prudent to at least assess whether it would be an undue hardship for the employer to accommodate the misconduct. This defense can be difficult to prove.
It seems that underlying the Ninth Circuit’s earlier opinion in Gambini was the concept that the bipolar employee’s emotional outburst for which she was terminated occurred in a closed meeting with only members of management present. This was described by the Mayo court as merely a “temper tantrum.” When these challenging issues arise in the workplace, it is recommended that the employer contact its legal counsel early to navigate these complex questions. The Mayo court provided some clarity in an area largely shrouded in shades of gray.