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.