April 2016 Bar Bulletin
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April 2016 Bar Bulletin

Workplace Violence and the ADA: Stopping the Trend

By Karen Sutherland


Employers are sometimes hesitant to address behavioral issues that could lead to workplace violence because of the Ninth Circuit’s ruling that violent outbursts that are part of a disability must be reasonably accommodated under the Americans with Disabilities Act (ADA).1

However, the Ninth Circuit recently distinguished its prior decisions and held in Mayo v. PCC Structurals, Inc.,2 that threatening to shoot a supervisor on at least five occasions is not behavior that needs to be reasonably accommodated, even if it is an adverse reaction to stress that is caused by a disability.3

The difference between the prior cases and Mayo was that the employers in the prior cases had not persuasively argued that the employee was not a “qualified individual,” which is a term of art under the ADA. The Ninth Circuit’s analysis in Mayo did not focus on whether the employee posed a “direct threat” to others or on whether he could be reasonably accommodated by changing his duties or giving him additional time off or a new supervisor, but instead focused on whether, in light of his reaction to stress, he was qualified to do the job at all. Viewed from that perspective, the Ninth Circuit held that “an employee whose stress leads to violent threats is not a ‘qualified individual.’”

In its conclusion, the Ninth Circuit also noted: “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.”

The Ninth Circuit in Mayo was applying both federal law (the ADA) and Oregon law. Under Washington law, employees also must prove that they are qualified to perform the essential functions of the job, so a similar analysis would be applied under Washington law.

The Sixth Circuit Court of Appeals also recently addressed employee behavioral issues under the ADA in Michael v. City of Troy,4 a 2-1 opinion involving a police officer, Michael, who was employed by the City and who had a medical history that included three brain surgeries. Michael engaged in “aberrant behavior” that began when his wife gave the Troy police chief empty steroid vials belonging to Michael that were intended for veterinary use.5

Michael sued the police chief in small claims court to get the empty vials back, and attempted to serve process on the chief at his retirement party. Michael also secretly recorded his wife at family gatherings and marriage counseling sessions and then asked the prosecutor to prosecute her for perjury based on Michael’s recordings. The new police chief, who took over after the former chief retired, received reports that Michael accompanied a cocaine dealer on several drug deals.6

When Michael underwent brain surgery for the third time and was cleared to return to work by his surgeon, the City had doubts about his fitness for duty due largely to his aberrant behavior.7 The City required a fitness for duty evaluation by a neuropsychologist prior to Michael’s return to work. The neuropsychologist found that Michael “may be a threat to himself and others” and he was placed on unpaid leave.8

Michael obtained an opinion from a second neuropsychologist, who found him fit for duty. The City sent Michael to a third neuropsychologist, who agreed with the first neuropsychologist.9 Two other doctors who reviewed Michael’s medical file for disability insurance purposes, but did not examine him, concluded he could return to work.10

After that, Michael sought another opinion from a professor of neuropsychology, who concluded that Michael “has weak ‘executive functioning,’ that ‘I cannot recommend that the patient return to full patrol duties[,]’ and that ‘[s]afety with use of weapons and high-speed driving would be in question.’” Michael did not share the professor’s opinion with the City.11

The City left Michael on unpaid leave, mostly because of the conclusions of the two doctors who examined him on behalf of the City, but also because Michael’s “own behavior tended to confirm those conclusions.” Michael sued the City, alleging the City regarded him as disabled and discriminated against him under the ADA.12

The Sixth Circuit noted that an individual who poses “a ‘direct threat’ to the health or safety of others which cannot be eliminated by a reasonable accommodation” is not qualified for an employment position. The employer’s determination that an employee poses a “direct threat” must be “objectively reasonable,” which means it can be based on a medical opinion that is objectively reasonable.13

A medical opinion can be objectively reasonable even if it conflicts with other medical opinions if there is credible scientific basis for it.14 Also, an employer is not required to rely on a medical opinion to determine that a person poses a direct threat. “Testimonial evidence” concerning the employee’s behavior can be sufficient.15

The Sixth Circuit found that both types of evidence, medical and testimonial, supported the City’s decision to place Michael on leave.16 With respect to the medical evidence, the court noted that all of the doctors wrote detailed reports, but that unlike the City’s doctors, the opinions from Michael’s doctors had “relatively little to say” about his ability to perform his job as a police officer and that these omissions were “conspicuous.”

As a result, the reports did not reflect the “individualized inquiry” required under the ADA.17 Michael’s medical experts also did not address his aberrant behavior. 18

The larger issue, though, as noted by the Sixth Circuit, was that “reasonable doctors can of course disagree — as they disagree here — as to whether a particular employee can safely perform the functions of his job. That is why the law requires only that the employer rely on an ‘objectively reasonable’ opinion, rather than an opinion that is correct.”19 Therefore, the Sixth Circuit held that the City’s decision not to return Michael to duty was “objectively reasonable.”20

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