The Americans with Disabilities Act (“ADA”) forbids discrimination against a “qualified individual on the basis of disability.” If the employee has a mental or physical condition that substantially limits a major life activity, the employee is disabled. In 2008, Congress amended the ADA to broaden its scope, and the EEOC promulgated this regulation:
An impairment is a disability … if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.
Under this standard, a less-than-substantial limitation of a major life activity constitutes a disability. It is seldom even argued that an impaired employee is not “disabled” for ADA purposes.
However, in Weaving v. City of Hillsboro (9th Cir. 815/14), just such an argument prevailed. Weaving had been diagnosed with ADHD when he was six years old, and took medication for it until he was twelve. At that point, his mother felt that he had outgrown the ADHD and discontinued his medication. However, he continued to experience interpersonal problems throughout his childhood and adolescence.
In his late twenties, Weaving became a police officer. He had problems working with his colleagues in two different jobs. When he joined the Hillsboro Police Department (“HPD”) in 2006, he never mentioned his ADHD history. Weaving did well in his job and received good reviews and promotions during the first two years. However, it was noted that while his interactions with the public were professional, his interactions with colleagues and subordinates were problematic. Subordinates described him as demeaning, intimating and arrogant, and complained that he made them feel stupid and small. He was uncommunicative. At times he was a bully. In 2009, his inappropriate response to a subordinate resulted in disciplinary action. It was only then that Weaving reported his ADHD history, and requested” all reasonable accommodations” to his disability.
Weaving was evaluated by professionals who concluded that, while Weaving had ADHD, he was still fit for duty and not disabled, as the level of his ADHD did not preclude him from succeeding at his job. His employment was terminated due to his inability to work with others, and he filed a lawsuit.
Weaving prevailed at trial. However, the court of appeals reversed the decision. It recognized that working and interacting with others are major life activities under the ADA, but it concluded that his ADHD did not interfere with his ability to work, as he had demonstrated success at his job. As to interacting with others, the court compared Weaving, who was able to engage in normal interactions with his supervisors, to successful plaintiffs who were virtually unable to function. Weaving was merely a “cantankerous person,” whose communications were sometimes inappropriate, ineffective or unsuccessful. The court did not believe that this conduct met the standard for a disability under the ADA.
We do not believe that employers should rely on an unusual decision like the Weaving case. It is more likely that a court would find, like the trial jury found, that he was disabled. It may be that the court was so offended by Weaving’s uncommunicative, ill-tempered bullying of his subordinates that it found a way to rule against him. If we were to face a similar situation, we would advise our client to attempt to accommodate the ADHD and, only when that fails (if it does), terminate an employee who suffers from a well-recognized mental condition.
Please direct any employment law inquiries to:
Alan M. Rauss (216) 736-7221 or
amr@kjk.com
or to
Robert S. Gilmore (216) 736-7240 or
rsg@kjk.com