We have an employee with what I think are mental health problems. The person has angry outbursts—not violent exactly, but pretty wild when they happen. My question is, how do we approach this person? I don’t think I should be saying, “Hey, I think you have manic depression,” but I don’t know what approach is appropriate. How much of this do I have to tolerate as an accommodation before I take more serious action?
— Susan F., Office Manager in Tulare
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While the simple answer is that you do not need to tolerate inappropriate behavior, the situation that you describe raises a complex assortment of issues that touch on two main employer obligations: to maintain a safe workplace, and to not discriminate against employees who suffer from legally-protected mental disabilities. Many employers faced with disruptive behavior known to be linked, or thought to be linked, to a mental disorder will struggle to balance these considerations. The following approach should help you to sort through this inherently sticky wicket.
First, Get the Facts
To begin, gather as many facts as are readily available regarding the employee’s behavior. In particular, what is the nature and frequency of these “angry outbursts”? How often do they occur and in what circumstances? What is the employee’s demeanor and conduct, exactly? Has the employee made any direct or veiled threats to harm anyone? And so forth. This information will allow you to determine the general severity of the behavior and help to orient you to potential safety implications.
Next, Determine Whether You Are “On Notice” of a Mental Disorder
An employer must accommodate only “known” disabilities. Therefore, in assessing your possible legal obligations under the federal American with Disabilities Act (ADA) and corresponding California law, you should determine whether you possess direct or imputed knowledge of a disability.
At times, an employer will acquire knowledge of a disability directly, such as when an employee seeks an accommodation. Absent direct information, a court will impute knowledge of a disability on an employer only when “the fact of disability is the only reasonable interpretation of the known facts.” For example, in Brundage v. Hahn, a California appeals court ruled that the employer’s awareness that the employee had taken leave for medical appointments was insufficient to impute knowledge of the employee’s manic-depressive illness, because the leave request did not hint at a mental disability.
In your case, ask: Has the employee informed a supervisor or manager that he or she suffers from a mental disorder, sought an accommodation, or spoken about a disorder on an informal basis? If the employee has not informed you of a disability, does his or her behavior (because of its bizarre, severe, or inexplicable nature) nonetheless leave a mental disorder “as the only reasonable interpretation”? The answers to these questions will help you to determine whether you are “on notice” of a potential mental disability. Be mindful that knowledge by a supervisor or manager will be imputed to you as the employer.
If you do not have direct or imputed knowledge, I would strongly caution against assuming that your employee suffers from mental disorder. Among other problems it can generate, engaging in speculation about a possible disorder can constitute negative stereotyping, leaving you open to claims that you unlawfully made employment decisions adverse to the employee because you “regarded” him or her as disabled. Remember, most often, bad behavior is simply bad behavior and has nothing to do with a mental disorder.
Consider Whether the Behavior Raises a Concern About Violence
If you are not on notice about a mental disorder, you are free to tackle the employee’s behavior head on without considering possible requirements under the ADA and corresponding California law. How you then approach the employee will hinge on a key factor: whether his or her behavior raises a concern that the employee may act out violently. While a full discussion of behavioral issues is beyond the scope of this response, by way of example, behavior often will raise a concern about possible violence when it is persistent or severe, reflects a simmering grudge, or is accompanied by direct or veiled threats.
If the behavior raises a concern about possible violence, the next best step is to consult with a psychologist or other clinician who is specifically trained in violence risk assessment. A qualified threat assessment professional will assist you in determining how to approach the employee, manage the behavior in question, and mitigate any identified risk of violence.
If the behavior does not raise a concern about possible violence, then it becomes important that you begin a structured remedial process that includes reminding the employee of workplace standards of conduct and imposing discipline consistent with your company’s policies and practices. If discussions with the employee or others reveal that personal stressors (for instance, an impending divorce) could have played a part in the employee’s behavior, you might consider offering a referral to an employee assistance program, in addition to imposing discipline.
If You Have Knowledge of a Mental Disorder
If you are “on notice” that the employee suffers from a mental disorder, then understanding certain legal principles will enable you to navigate requirements under the ADA and corresponding California law, as follows:
First, not all mental disorders are legally-protected disabilities, and not all individuals with a disability qualify for protection under anti-discrimination laws. As an initial matter, then, you might seek legal advice regarding whether the mental disorder in question, and its manifestations, trigger requirements of accommodation under the ADA or California law.
Second, if the employee’s behavior has raised a concern about possible violence, then the recommendation again is to consult with a qualified threat assessment professional, along with an attorney. Issues related to the mental disorder will then be handled within the confines of a formal threat assessment. If the threat assessment reveals a risk of violence, you may seek relief from potential requirements of accommodation via the “direct threat” exception to the ADA. The ADA permits an employer to terminate an employee who poses a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Determining whether your situation meets the direct threat standard would require an evaluation of several factors, and again would benefit from a legal consultation.
Next, if the employee qualifies for legal protection and his or her behavior has not raised a concern about possible violence, you should promptly hold discussions with the employee geared toward two objectives:
1) seeking the employee’s understanding of and compliance with workplace standards of conduct; and
2) determining whether an accommodation might be needed to help the employee meet those standards.
Again, legal advice is warranted here. However, as a general matter, you should know that, irrespective of whether a worker has a disability, you may require the employee to comply with necessary standards of workplace conduct. Certainly, you may discipline an employee who engages in angry and disruptive outbursts. The question is whether, as an employer, you are required to provide accommodations to help the employee comply with workplace behavioral rules. Answering this question may require detailed discussions with the employee, supplemented if necessary with information sought from the employee’s medical provider, and legal advice.
Dealing With an Employee’s Disruptive Behavior Can Be Daunting, But Is Important
While navigating these legal requirements and practical challenges may seem daunting, it is important to remember how critical it is to enforce standards of appropriate workplace conduct. Setting the right standards of workplace professionalism—especially in situations involving aggressive, angry, or threatening behavior—not only promotes workplace safety, but helps to minimize the disruptive influences of inappropriate conduct, especially behavior that raises concerns about an employee’s volatility or potential violence.
Rebecca A. Speer is founder and principal of Speer Associates/Workplace Counsel, an employment law and employee relations consulting firm in San Francisco.