Michael P. Maslanka, assistant professor of law, UNT Dallas College of Law. (Danny Hurley)
This month we look at an intractable issue: dealing with mental illness/cognitive impairment in the workplace. Laws change, yet attitudes and mindsets remain the same. Here are three cases and three lessons.
Lesson No. 1: HR is not an MD. An employee suffers a closed head injury. (By the way, according to Medscape there are 570,000 injuries a year in the United States.) He is a water service employee for a city and has been on the job for 14 years. The employee takes time off to heal and the city requires that he submit to a fitness for duty exam by a physician. The doctor looks at the job’s essential functions and gives him a medical examination. He gets a green light to go back to work. His supervisor observes the worker in the field performing his tasks. Passing grade here as well. One day the worker is driving in his city truck and a clipboard falls to the floor. He takes his eyes off the road (he is passing through an intersection when the light is green) for a second to pick it up. Turns out, a co-worker sees him disappear for the 15 seconds or so it takes to pick up the clipboard. HR is informed. The employee is placed on administrative leave and the same doctor is asked for his opinion. This time, the MD is only provided with documents regarding performance, including the intersection incident. No physical examination. The MD reports: can’t do the job. HR decides: he is fired. The jury in the ADA lawsuit says: violation and pay up to the tune of $225,000 in mental anguish damages and back pay to the tune of $354,070.72. The Seventh Circuit affirms, saying that the jury was entitled to infer discrimination from the failure to ask for a second medical exam. And, by the way, the court says that the city could not prove that the employee was a “direct threat” because there were no facts to support that assertion. And “No,” says the court to the city, “Your good faith that he did pose a threat only means you had a pure heart, but an empty head.”
And that’s really what happened. The city decided that he posed a threat because of cognitive problems with the closed head wound, and decided to rush to judgment. No evidence, just a firm belief. Better safe than sorry. Sometimes with students, I will ask them to think about a time they were 100 percent, absolutely, positively sure that XYZ was the case and then discover that it was not. I tell them that once upon a time, I represented a client in a lawsuit alleging that the plaintiff was terminated for filing a workers’ compensation claim. The client and its carrier hired a PI firm to take video of the plaintiff, convinced that his injured back was not in bad shape and that he was faking the injury. Sure enough, the PI firm got a video of him playing basketball. Employee gets fired. Turns out he had a doctor’s note to play basketball because he needed to exercise in order to lose weight to help his back heal. All we ended up with was proof that he had a lousy hook shot.
The lesson: It’s not what you don’t know that hurts you, it’s what you think is so that isn’t that does.
Lesson No. 2: The ADA’s sweep is broad. Really broad. Ever hear of social anxiety disorder? Here is a fact according to the website of Anxiety and Depression Association of America: more than 15 million Americans suffer from it. It is the most common mental disorder. The American Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) recognizes it as a disorder that is characterized by “a marked and persistent fear of social and performance situations in which (a) person is exposed to unfamiliar people or to possible scrutiny by others.”
Facts, not barroom generalities. Here’s story No. 2 about an employer who decided generalities and not facts were called for. A person goes to work as a court clerk. Part of the job is dealing with the public. She tells her employer that she has this disorder and asks if she can get a reduced schedule at the front counter. There are 30 employees who hold her same position. She is called into a meeting and terminated for not “getting it.” And that “we do not have any place (that we could) use (your) services.”
In reversing the trial court’s dismissal of the ADA lawsuit, the appeals court rejected the argument that the employee was not disabled under the ADA. The court said that “interacting with others” is a major life function and that the employee was substantially limited in performing that function. But pleaded the employer, “She looked fine to us. She went to lunch with her co-workers. She went to happy hour-type events with them. She was on Facebook for crying out loud.” The appeals court drilled that argument. “A person need not live as a hermit in order to be substantially limited in interacting with others.” And the court cited to a fact (stubborn things are they not as John Adams once remarked), “according to the American Psychiatric Association, a person with social anxiety disorder will either avoid social situations or ‘endure the social or performance situation … with intense anxiety.” Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562 (4th Cir. 2015), by the way the cite for the first case was Stragapede v. City of Evanston (7th Cir. July 31, 2017).
Takeaway: It’s fine to get some facts on an employee’s condition. Ask the employee or hire an expert. Yes, the first can be uncomfortable and the second expensive, but much less so than giving a deposition or writing a check to pay a judgment. And please, some compassion goes a long way. Do not tell the employee to buck up and take it. That’s what allegedly occurred in our third case.
Lesson No. 3: There is no crying in baseball, but there can be at work. My apologies to Tom Hanks and “In a League of Their Own.” Imagine you are at work and a longtime employee starts acting oddly. Sleeping on the job when they should be working. Or, perhaps, just bursting out in tears for no apparent reason. She tells you that she feels extremely distraught and overwhelmed and afraid that she cannot continue to work. The crying at times is uncontrollable. You tell her that she has to pull herself together or resign. Are you free and clear? No. A line of cases from the Seventh Circuit says that very unusual conduct by an employee who has been, as the millennials like to say, “always in their lane” may be constructive notice of the employee’s need for leave under the Family and Medical Leave Act. To cite the Seventh Circuit: “[The notice requirement of the FMLA] may be met indirectly by clear abnormalities in the employee’s behavior and may constitute constructive notice of a serious health condition. … [I]n those cases observable changes in an employee’s condition or uncharacteristic or unusual conduct at work may themselves provide an employer with adequate notice of a serious medical condition and thus [act as a request for FMLA leave].” Thus, the employer’s motion to dismiss for failure to state a claim was denied. Valdivia v. Township High School District 214 (N.D. Ill. 2017).
Takeaway: Employers like to bloviate on sand about how much they value their employees, giving them names like “partners” or “associates” or “team members.” Fine. But think about showing genuine concern. It’s not only the decent thing to do, but perhaps the legal one as well.
Once upon a time, I thought sex—whether hostile environment, gay rights, transsexuals—would be the last barrier to open and honest workplace discussion. But I was wrong. Now, I think it will be discussions about the hidden and unseen that will be the last to fall. I guess because we fear what we can’t see. But we should not. A little common sense, a fundamental grasp of the law, and a modicum of caring should do the trick.