United States: The Problem Employee: Discipline or Accommodation?

Two recent cases illustrate how dealing with an employee who interacts negatively with coworkers can lead to litigation. In one case, a belligerent supervisor claimed that a campaign of racial harassment had created a hostile work environment and led to his constructive discharge. In the other, a discharged employee sued her employer for back pay and punitive damages under the Americans With Disabilities Act because her troublesome behavior was caused by a bipolar disorder.

In Herron v. DaimlerChrysler Corp. (No. 03-2802) (2004), the United States Court of Appeals for the Seventh Circuit found that Herron, who is black, was a highly productive supervisor who interacted poorly with coworkers, supervisors and subordinates. He was headstrong, disrespectful, argumentative and belligerent, and no manager wanted to work with him. After several poor appraisal reviews and discipline, he resigned and sued DaimlerChrysler, claiming race discrimination, retaliation and a racially hostile work environment that had led to his alleged constructive discharge. The trial court granted summary judgment to DaimlerChrysler and the court of appeals affirmed, agreeing that Herron had not established a prima facie case to support his claims. Herron had to show that he was meeting his employer’s legitimate expectations. As to this, the court concluded:

Jacques v. Dimarzio, Inc. (Nos. 03-9080, 03-9109) (2004), decided by the United States Court of Appeals for the Second Circuit, also involved a plaintiff who had serious problems "interacting" with coworkers. An average to above-average assembler, Jacques regularly complained about working conditions and was repeatedly in conflict with other workers. She was fired after her working relationships had become "poisonous." Unlike the plaintiff in DaimlerChrysler, however, Jacques suffered from a bipolar disorder that caused periods of severe depression, and her supervisor was aware of this condition. A jury awarded Jacques $190,000 in back pay and damages. On appeal, the award was set aside because of a faulty jury instruction but the court’s analysis of the ADA issue is instructive.

Noting that a person is disabled under the ADA if he or she has a physical or mental impairment that substantially limits one or more of the major life activities, the court agreed with the Ninth Circuit Court of Appeals that the "inability to interact with others" is a major life activity. The court disagreed with the Ninth Circuit’s test of what constitutes a substantial limitation of this activity. In the Ninth Circuit’s opinion, the limitation is substantial if it is "characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary." The court found this approach unworkable and was concerned that it would frustrate the maintenance of a civil workplace environment:

Instead, the court ruled that a plaintiff is substantially limited in interacting with others when his impairment "severely limits the fundamental ability to connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people – at the most basic level of these activities."

It is unclear from the court’s opinion whether Jacques will prevail on retrial of her ADA claim. Had the plaintiff in DaimlerChrysler suffered from bipolar disorder and sued under the ADA, it seems apparent that he could not have successfully claimed a severely limited ability to "initiate contact with other people and respond to them." If you have questions about dealing with employees who interact poorly with coworkers, please contact Jim Petrie or any other Vedder Price attorney with whom you have worked.

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