What is I-O?

Regarding tidbits, I wrote in the October issue about a colleague who requested advice on an ADA issue (an employee who was forced to take an MMPI and was fired based on the results of that test). The colleague, whose anonymity I will protect, cited three issues: (a) the MMPI request was based solely on suspicion; (b) the employee was forced to take the MMPI; and (c) termination was based solely on the MMPI results. There was no evidence of inability to perform essential job duties and, more generally, no failures to abide by any terms and conditions of employment. My opinion was that even if a jury would conclude that the employee was not an individual with an actual disability (i.e., a current physical or mental impairment that substantially limits a major life activity), the aforementioned actions could leave the employer vulnerable to the charge that the employee was regarded as being disabled.

In response to the tidbit I received a timely e-mail from Michael Harris regarding Sullivan v. River Valley School District (1999), in which the 6th Circuit upheld summary judgment for an employer on a seemingly similar issue. Sullivan, a teacher, was forced to undergo a mental fitness-for-duty exam and was terminated for not complying. Among other claims, Sullivan argued that the requirement to undergo mental testing was proof his employer regarded him as being disabled. Does this alter the opinion I gave to my colleague in the October tidbit? The answer is no, for the following reasons. 

Before discussing the Sullivan case, lets examine the facts of an earlier case (Stradley v. Lafourche Communications, 1994). Stradley was diagnosed with acute anxiety and depression, a diagnosis accepted, without question, by the employer (mistake #1). Subsequently (mistake #2), the employer, terminated Stradley based on his own general life experiences, expressing the belief that Stradleys condition made him potentially violent and hostile in the workplace. The judge, in denying summary judgment for the defendant, ruled that a reasonable jury could interpret this belief as a conclusion that Stradley was not fit to work in any job and that there was a genuine issue of fact ... as to whether [the employer] regarded Stradley as having a disability for the purposes of the ADA.

Compare this to the facts in the Sullivan case. Sullivan had a long history of satisfactory performance and had never been disciplined. However, one day, for reasons unknown, he exploded at a school board meeting where he engaged in disruptive and abusive verbal outbursts, shoved papers in the faces of individual members of the board, and refused to stop when asked by the board president. Sullivan subsequently disclosed confidential information about a student to a local newspaper. The superintendent contacted a psychologist for advice and suspended Sullivan pending mental and physical fitness-for-duty exams. Sullivan was terminated for failing to comply with the request for fitness-for-duty examination.

The district court rendered summary judgment favoring the school district and the 6th Circuit affirmed. On the issue of whether the school district regarded Sullivan as being disabled, the 6th Circuit ruled as follows: 

Sullivans evidence that his employer treated him as impaired is that his employer asked him to undergo mental and physical examination to determine his fitness as a teacher following his allegedly exhibiting some unusual behavior. Given that an employer needs to be able to determine the cause of an employees aberrant behavior, this is not enough to suggest that the employee is regarded as mentally disabled. As the district court ably explained, a defendant employers perception that health problems are adversely affecting an employees job performance is not tantamount to regarding that employee as disabled. 

Comparing these two rulings, one (Stradley) for the plaintiff and the other (Sullivan) for the defendant, it is apparent that Stradley was fired solely on the basis of suspicion. There was no evidence of misbehavior in the workplace and no attempt on the part of the employer to determine the nature and severity of Stradleys illness. In comparison, Sullivan had clearly broken several terms and conditions of his employment. In response, his employer was in the process of determining whether and to what extent mental problems might have caused or contributed to Sullivans misbehavior and what, if , reasonable accommodations might be required.

It should be noted that the Sullivan ruling was based to a large extent on a prior 8th Circuit ruling (Cody v. Cigna Healthcare, 1998). In that case, Cody, a nurse tasked with field assignments in the metropolitan St. Louis area, claimed that she suffers from depression and anxiety and that it was therefore difficult for her to go into certain parts of the city she considered dangerous. Cody claimed that her supervisor had intentionally assigned her to travel exclusively to the areas that exacerbated her anxiety and demanded a new supervisor (among other things). Other factors (e.g., threats by Cody) prompted an offer by Cigna of a paid medical leave and psychiatric evaluation. As in the Sullivan case, Cody was terminated and the district favored summary judgment for Cigna. On appeal, the 8th Circuit affirmed, ruling on the issue of having been regarded as being disabled that: 

Cody contends that Cigna viewed her as disabled. In support she cites Cignas offering her paid medical leave and requiring that she see a psychologist before returning to work. An employers request for a mental evaluation is not inappropriate if it is not obvious that an employee suffers from a disability. A request for evaluation is not equivalent to treatment of the employee as though she were substantially impaired. Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims. 

In short the requirement to submit to psychological evaluation is not sufficient, in itself, to support a claim of being regarded as being mentally disabled. More is required. 

Conclusions

The three cases cited above do not exhaust case law on the issue of being regarded as being mentally disabled. However, they do, I believe, illustrate the endpoints.

The facts presented to me for the October 2000 tidbit beg for a Stradley-like ruling. A supervisor, having no basis other than personal suspicion, ordered the employee to take an MMPI. This, alone, I believe, would be sufficient to support the claim of being regarded as being disabled. The fact that the employer would terminate based on the MMPI results only adds to the claim. Lafourche Communications had stronger footing, having legally obtained knowledge that Stradley had a mental disorder. However, the actions taken were based on the employers personal viewpoint that Stradley would be a danger in the workplace. There was no objective evidence in either of these two situations that the employee had broken any terms or conditions of employment or that they presented dangers to themselves or others in the workplace.

In comparison, the Sullivan and Cigna rulings indicate valid conditions for ordering psychological evaluation. Both Sullivan and Cody violated the terms and conditions of their employment and, in both cases, there was evidence of a need to obtain psychological information to understand why they had done so (and/or to determine what if any reasonable accommodations would be required).

Going a step further, one can argue that the employers in both the Sullivan and Cigna cases were obligated to order psychological evaluation. In both cases, there was evidence of anger and threats to do harm. Had Sullivan or Cody carried out threats (some of which implied workplace violence) and had the employers not taken proactive steps, it is possible that other employees would have a cause of action against the employer for any actual danger they were exposed to. Is the employer who has a basis for fearing such outcomes liable if no proactive steps are taken?¹

So what does it take to falsely regard an employee as being mentally impaired? I believe either of two things. First, appealing to psychological consequences (evaluation and/or treatment) without evidence that the employee is failing to perform an essential job duty and/or in other ways breaking the terms and conditions of employment. Second, acting on legally obtained information of an actual mental impairment, but doing so in the absence of professional expertise. In contrast, when there is evidence of failure to adhere to terms and conditions and when psychological factors are implicated, I believe the employer has the right (and possibly the obligation) to take proactive steps to investigate, and the employee has the duty to comply. 

References

Cody v. Cigna Healthcare (CA8 1998) 139 F.3d 595

Stradley v. Lafourche Communications (ED La. 1994) 869 F.Supp 442

Sullivan v. River Valley School Electronic Citation: 1999 FED App.0359P (6th Cir.)

Tarasoff v. Regents of the University of California (Cal, 1976) 551 F.2d 334