United States: Plays Nicely With Others: A Major Life Activity Under The ADA?

Do you have employees in your work force who just can't seem to get along with other workers? If so, you're not alone. And if such an employee has a psychiatric disorder of which you are aware and you discipline the employee, you may face a claim of discrimination based on an argument that you "regarded" the employee as disabled under the American With Disabilities Act (ADA) because she failed to interact well with others in the workplace. The Second Circuit Court of Appeals' recent opinion in Jacques v. DiMarzio, Inc., 2004 U.S. App. LEXIS 20780 (2d Cir. Oct. 5, 2004), may prove instructive. In a case of first impression in the Second Circuit, the court confronted the issue of whether "interacting with others" in the workplace is a "major life activity" protected under the ADA, and, if so, what a plaintiff must demonstrate in order to be considered "substantially limited" in "interacting with others" when maintaining an action under the ADA. These are questions on which federal courts have disagreed.

DiMarzio, Inc., an electric guitar manufacturer, first hired Audrey Jacques in 1989 as a packager and assembler of guitar components in its factory. Ms. Jacques had suffered from severe and major depression for more than 40 years; her condition was ultimately diagnosed as bipolar disorder. It was not until 1992, in connection with a request for leave, that she informed the plant manager of her disorder and that she was taking the medication Prozac to control her condition. With Ms. Jacques' permission, the plant manager informed her immediate supervisor, who was not as sympathetic as the plant manager. Ms. Jacques' employment at DiMarzio from 1990 through 1996 was turbulent. She repeatedly expressed safety concerns about DiMarzio's practice of permitting employees to perform work at home, without safety glasses, involving the use of solder, flux, and industrial glue. Some time in early 1996, Ms. Jacques complained about factory overcrowding and sought emergency room treatment for severe headaches, blurred vision, nasal congestion, and nausea she attributed to the factory conditions. There were also several incidents in which Ms. Jacques made insensitive remarks reflecting prejudice against her Hispanic-American and African-American coworkers.

By August 1996, Ms. Jacques. supervisors believed her presence at the factory was counterproductive and they attempted to convince her to work at home. She asked to consult a lawyer before making a decision. The next month, one of Ms. Jacques' coworkers complained that Ms. Jacques harassed her; the coworker filed a complaint with the company. When advised of the complaint, Ms. Jacques called in sick and told the company she was "too upset" to leave her house and "expose herself to the anxieties of the workplace". During the discussions between Ms. Jacques and the plant manager over the next few days, the plant manager encouraged Ms. Jacques to see a psychiatrist, told Ms. Jacques she could return to work but leave if she felt uncomfortable around the co-worker who had lodged the complaint, and said he would continue to explore the possibility that Ms. Jacques could work from home. The next day, however, DiMarzio's owner decided to terminate Ms. Jacques' employment based on her numerous conflicts with supervisors and coworkers.

Ms. Jacques filed a pro se complaint with the National Labor Relations Board (NLRB) alleging her discharge violated the National Labor Relations Act (NLRA). DiMarzio provided written statements describing Ms. Jacques as a "problem employee," "prone to confrontations with coworkers," and "intolerant of ethnic minorities." She was described as the "most confrontational person we have ever employed." No violation of the NLRA was found and her claim was dismissed.

Ms. Jacques then sought and received a right-to-sue letter from the EEOC and brought suit under the ADA. She claimed DiMarzio discriminated against her because of her bipolar disorder that substantially affected her ability to take care of herself, and because of her "record" of suffering from a bipolar disorder. DiMarzio's motion for summary judgment was denied. The district court found a "triable issue of fact as to whether DiMarzio 'regarded' Ms. Jacques as having 'severe problems' 'on a regular basis' in her 'relations with others'".

The district court instructed the jury that, in order to prevail, Ms. Jacques must prove she was:

The jury ruled in Ms. Jacques' favor and found DiMarzio had terminated her because it "perceived" her as being disabled in the major life activity of "interacting with others". Ms. Jacques was awarded $50,000 in compensatory damages and punitive damages. The district court then awarded her $140,000 in post-judgment interest. On appeal, DiMarzio challenged the propriety of the district court's instruction.

The district court erred in instructing the jury on the showing necessary to establish that Ms. Jacques was "regarded as" having a disability substantially limiting her in "interacting with others," and vacated and remanded the case. A plaintiff is "substantially limited" in "interacting with others" when the mental or physical impairment severely limits her fundamental ability to communicate with others. A plaintiff can satisfy this standard by demonstrating the inability to initiate contact with other people and respond to them or to connect with others at the most basic level of activities.

Here, DiMarzio simply perceived Ms. Jacques as an "extremely emotional" and "irrational individual". The Second Circuit found this characterization of an employee fell far short of the standard necessary for showing Ms. Jacques was "regarded" as being "substantially limited" in "interacting with others". The Second Circuit rejected the First Circuit's position that "the ability to get along with others" can never be a "major life activity" under the ADA (Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st.Cir. 1997)). It agreed with the Ninth Circuit that "interacting with others" is a "major life activity" (McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999)). However, the Second Circuit rejected the Ninth Circuit's test for determining when a limitation on this activity is "substantial" for ADA purposes, which was the test on which the jury instruction in this case was based. That test, the Second Circuit said, was "unworkable, unbounded, and useless as guidance to employers, employees, judges and juries". It devised its own test, quoted above, which puts the focus on the employee's basic ability to communicate, not on the content or style of the communications.

Employers Take Note: Courts' Standards on "Interacting" Vary

• For employers with workplaces in the First Circuit--Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island --"the ability to get along with others" is not a "major life activity" under the ADA;
• For employers with workplaces in the Ninth Circuit--California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam, and the Northern Mariana Islands--"interacting with others" is a "major life activity" under the ADA;
  (Note, however, that in California most disability discrimination claims are brought under the state law, which defines "disability" more broadly than federal law and puts no caps on damage recovery.)
• In the Second Circuit--New York, Connecticut, and Vermont--an employee whose ability to communicate with others is not substantially limited but whose interaction with coworkers may simply be inappropriate, ineffective, or unsuccessful is not "substantially limited" in "interacting with others" under the ADA;
• In the Second Circuit, there is a difference between "getting along with others" and "interacting with others" in the workplace--the latter is significant for purposes of maintaining an action under the ADA;
• Incidents of an employee's conflicts with supervisors and/or coworkers should always be well documented, and descriptions of events should be as plainly factual as possible, avoiding psychological characterizations; and
• Whether an employee is "regarded" as disabled under the ADA may be dependent upon managers' and supervisors' responses when made aware of an employee's mental or physical condition. Therefore, managers and supervisors should be trained in responding to information provided by employees about their physical or mental condition.

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