When is Aberrant Workplace Behavior Sufficient to Justify Termination?

18 July 2016 Labor & Employment Law Perspectives Blog
Author(s): Bennett L. Epstein

Aberrant workplace behavior caused by stress or a psychological condition is not uncommon. However, such behavior can also cause employers to become anxious regarding how to lawfully deal with the disruption and its effect on co-workers. The United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana, and Wisconsin) recently provided guidance.

The former employee in the case worked for the Wisconsin Department of Transportation (WisDOT) administering road tests to new drivers (a job that would cause anxiety in the most sound of minds …) and front desk services. She suffered from a variety of psychological afflictions including post-traumatic stress disorder, anxiety, obsessive compulsive disorder, and a medical phobia. However, aside from her afflictions, she was a substandard worker who, for many years, received unsatisfactory reviews, which culminated in being placed on probation.

Shortly after the probation, the employee broke down crying at work and exhibited signs of having self-inflicted wounds on her wrist. WisDOT placed her on a mandatory medical leave and required her to undergo an independent medical examination evaluation to determine whether she posed a threat to herself or others. Based on its observations (including her statement that she regrets that the knife was dull and that she wanted to die) and the report of the psychiatrist, which stated that “[The employee] continues to be at increased risk of potentially violent behavior to herself and others within the workplace,” WisDOT terminated her employment because it concluded that she continued to pose a threat of violence to herself and others. The former employee sued based on the Rehabilitation Act, but the trial court dismissed her case. The Seventh Circuit confirmed that dismissal.

The Rehabilitation Act (as well as the Americans with Disabilities Act) applies a different legal framework for analyzing an employment action based on intolerable conduct at work (a traditional disparate treatment analysis) and an employment action based on a threat of future danger to one’s self or others (an affirmative defense). In this case, since WisDOT remained steadfast that it terminated the employee because of her workplace conduct, the appellate court agreed with WisDOT that the proper issue is not whether the employee is qualified to perform the job or whether the employer’s job criteria tends to screen out persons with psychiatric disabilities, but whether she engaged in intolerable workplace behavior – which she did. The fact that WisDOT also relied on the report of the examining psychiatrist did not alter its reliance on the employee’s workplace outburst and statements.

The ultimate guidance from this decision is that an employer whose employee engaged in intolerable behavior at work, regardless if it was as a result of a psychological condition, may take disciplinary action as long as it is non-discriminatory. However, if the employer refers the employee to a mental health professional and relies on the danger to self or others affirmative defense, it will face the higher hurdle of an affirmative defense. Thus, employers should consult with counsel as to the proper characterization of the reason for the termination.

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