United States: Inability To Get Along With Others As An ADA Disability? That´s Ridiculous!

Last Updated: January 5 2005

By Timothy M. Singhel (New York)

Originally published December 28, 2004

The Americans with Disabilities Act (ADA) generally prohibits employers from discriminating against employees on the basis of a recognized disability and also requires employers to engage in an "interactive process" with disabled employees and their doctors to determine whether a reasonable accommodation can be made to enable the employee to perform the essential functions of the job without posing an undue burden to the employer. Federal courts continue to struggle with the definition of "disability" – whether the employee’s alleged medical condition constitutes a physical or mental impairment that substantially limits a major life activity. That struggle is especially acute when it comes to mental impairments, and particularly when considering whether the employee has alleged a major life activity that is substantially limited by the impairment. A recent decision by the United States Court of Appeals for the Second Circuit (NY, CT, VT), Jacques v. DiMarzo, Inc., involving an employee’s claim that she was impaired in her ability to "interact with others" highlights the struggle.

Aubrey Jacques worked for electric guitar maker DiMarzo at its Staten Island, New York factory. She was hired by the company in 1989 as a packager and assembler of guitar components. In 1992, Jacques informed DiMarzo that she has suffered from severe depression since she was a teenager, and that she was taking Prozac. Beginning in early 1996, Jacques began complaining regularly that factory safety had worsened because of overcrowding and poor ventilation, and she sought medical treatment for ailments she attributed to the factory conditions.

At the end of August 1996, DiMarzo concluded that Jacques was too much of a disruption to her co-workers and managers, and to the efficiency of the production process generally, so it offered her the opportunity to become an independent contractor working from home. Before that arrangement was finalized, one of Jacques’ co-workers complained that Jacques had harassed her. Approximately a week later, Jacques was terminated because of her numerous conflicts with supervisors and co-workers, including the harassment complaint.

Jacques filed a complaint with the National Labor Relations Board (NLRB) alleging that she had been discharged because of her complaints about safety issues. DiMarzo responded by claiming that although Jacques was technically competent, she was a problem employee due to her confrontations with co-workers, intolerance of ethnic minorities in her department and her emotional problems. The NLRB rejected the complaint.

Jacques then sued DiMarzo under the Americans with Disabilities Act, claiming that DiMarzo had failed to accommodate her disability – difficulty in interacting with others – and terminated her in violation of the ADA. The district court allowed Jacques’ claim to go all the way to a jury trial. The jury instructions allowed the jury to find that DiMarzo illegally terminated Jacques because it "perceived" her as being disabled in the major life activity of "interacting with others."

DiMarzo appealed. The Second Circuit’s decision turned on whether "interacting with others" is a major life activity under the ADA, and whether Jacques had presented sufficient evidence that she was substantially limited in that major life function. Two other federal appeals courts have already weighed in on the question, the First Circuit (MA, RI, NH, ME, and PR), and the Ninth Circuit (CA, OR, WA, AZ, NV, ID, MT, AK, and HI).

In Soileau v. Guilford of Maine, Inc., the First Circuit considered a "major life activity" that it defined as "getting along with others." It then ruled that such an "elastic" and unworkable concept cannot be a major life activity. The Court also opined that the ability to interact with others comes and goes, triggered by the "vicissitudes of life" that are stressful to everyone, not just the mentally disabled. In short, the First Circuit declined to accept an inability to get along with others as a disability because it feared the consequences of hanging legal liability on such an amorphous concept.

The Ninth Circuit went the opposite way in McAlindin v. County of San Diego. The Court accepted that interacting with others is "an essential, regular function, like walking and breathing." In response to the vagueness problem stressed by the First Circuit, the Ninth Circuit held that would be addressed by a careful analysis of whether the employee was substantially limited in interacting with others. The Court opined that mere trouble getting along with others will not do the trick. Instead, the employee must support his or her claim with clinical findings indicating a pattern of withdrawal, consistently high levels of hostility and failure to communicate when necessary.

The Second Circuit’s Jacques decision stakes a middle ground. The Court agreed with the First Circuit that getting along with others is too subjective and malleable a concept to provide a basis for finding a disability. However, the Court also agreed with the Ninth Circuit that interacting with others is a major life activity, though it chided the West Coast court for making a false distinction between the hostile and the merely cantankerous, opining such a test was unworkable, unbounded and useless. Instead, the Second Circuit held that someone is substantially limited in interacting with others only when he or she is severely limited in the fundamental ability to communicate with others, connect with others, or "go among other people" at the most basic level of activity.

The confluence of those three federal appellate court decisions is confusing enough to lawyers, let alone employers. It is especially confounding for employers that have operations in multiple locations throughout the U.S. and may be subject to either completely different legal requirements for mentally impaired employees, uncertainty because most federal appellate courts have not ruled on this issue, or both. It will be at least a year before the Supreme Court resolves the issue (if at all), because no case currently before it addresses the split of authority amongst the lower courts. Even if the Supreme Court eventually issues a decision, it is quite possible that there will be no bright line or easily applicable test for employers to use.

Despite the quagmire, employers can help position themselves to comply with the law, properly accommodate truly disabled employees who can perform their jobs with those accommodations and minimize claims. First, a review of all three decisions suggests that the employers may have been over-emphasizing the employees’ mental disabilities, rather than focusing on their performance issues. For example, DiMarzo relied on Jacques’ "emotional problems" as a reason for terminating her, rather than focusing solely on the disruption she was causing in the workplace and her illegal harassment of co-workers. Unless an employer is engaged in the interactive process with an employee who has a documented disability, there is no reason to opine or comment on whether a potential disability or impairment may or may not be the reason for the performance issue. Suggesting emotional problems or some other mental impairment is a cause for a performance problem might be viewed as "regarding" the employee as disabled, the very trap into which DiMarzo fell. In short, focus on performance itself; don’t speculate on the reasons for the performance.

Second, there seems to have been a breakdown of the interactive process, or, in the Jacques case, no interactive process at all. Once an employee has documented a disability, or an employer has reason to know the employee has a disability, the employer should contact counsel and work with the employee and the employee’s health care providers to determine what, if anything, can be done to allow the employee to perform the job. If an employer sits down with the employee, discusses the limitations, and asks the employee and his or her health care provider what is needed to do the job, it will be able to make informed decisions that are less subject to court challenge. Indeed, the interactive process sometimes reveals that the employee does not have a legally defined disability, or even if he/she does, that the disability cannot be reasonably accommodated. For example, it is difficult to imagine that an employee with a mental impairment meeting the Second Circuit’s definition of being substantially limited in the major life function of "interacting with others" could be reasonably accommodated in any job that required team-work, collaboration, or even frequent interaction with supervisors and co-workers. In contrast, the interactive process may reveal an easy solution that will allow the employee to work and eliminate the possibility of a claim. The problem in Jacques is that the employer could not avail itself of that defense because it never engaged in the interactive process. Instead, it "regarded" the employee as having "emotional problems" and eventually terminated her, at least in part, due to that assessment.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions