Labor and Employment Articles 

Mentally-Ill Employees Who Threaten Co-Workers Are Not Protected By the ADA

by Sandra Perry
The Americans with Disabilities Act (“ADA”) prohibits discrimination against a qualified individual with a disability on the basis of that disability with regard to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.” A disability includes any physical or mental impairment that substantially limits one or more major life activities; having a record of such impairment; or being regarded as having such impairment. A “physical or mental impairment” is defined as (i) any physiological disorder, condition, cosmetic disfigurement, or anatomical loss affecting one or more major body systems; or (ii) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

In Palmer v. Circuit court of Cook County, Illinois, 117 F.3d 351 (7th Cir. 1997), the Seventh Circuit Court of Appeals, which covers Indiana, recognized that application of the ADA to individuals suffering from mental illness presents difficult issues. In that case, the Court addressed whether an employee with major depression and a paranoid disorder who was terminated after making numerous threats to kill her supervisor had a disability entitling her to the protections of the ADA. Although the Court acknowledged that mental illness may reasonably constitute an ADA-qualifying disability, it also determined that threatening other employees is disqualifying conduct. According to the Court, the ADA “does not require an employer to retain a potentially violent employee,” otherwise the employer would be placed in the untenable position of violating the statute if it fires the employee or of being deemed negligent if it retains him and he harms someone. Thus, the Court concluded that if an employer terminates an employee for unacceptable behavior, the fact that the behavior was precipitated by mental illness does not present an issue under the ADA. The Court further held that while an employer generally has a statutory duty to provide a reasonable accommodation for an employee’s disability, this obligation does not extend to “employees who commit or threaten to commit violent acts.”

Consistent with its Palmer decision, in a subsequent case, Chapa v. Adams, 168 F.3d 1036 (7th Cir. 1999), the Court determined that employees who threaten to hurt or kill their supervisors are not qualified under the ADA “even if their threats are hollow.” More recently, a federal district court in Illinois held that an employee with “intermittent explosive disorder” may have an ADA-qualifying disability but he was not qualified to perform his job under the federal statute because of his violent outbursts in the workplace, including threats to harm his manager. See Koshko v. General Electric Co., No. 01-C-5069 (N.D. Ill. 2003).

These cases stand for the proposition that regardless of the cause of workplace violence or the threat of violence, including drug or alcohol abuse or a mental disorder, an employer can still discipline the offending employee pursuant its standard policies. Employers are not required to retain an individual with a disability if that individual would pose a direct threat to his or her own safety or the safety of others in the workplace. This “direct threat” exception or defense generally requires a determination that the individual poses a significant risk (and not mere speculation of some possible risk) to the health or safety of others that cannot be eliminated by reasonable accommodation. However, according to Palmer and its progeny, this “reasonable accommodation” requirement no longer exists when the employee in question makes threats or engages in actual violence toward a co-worker or supervisor because “[a]n individual whose alleged disability disposes him to violent outbursts is not a qualified individual with a disability.” Koshko, No. 01-C-5069 (N.D. Ill. 2003) (citing Chapa, 168 F.3d at 1039).