Anger and the ADA

Two courts recently evaluated whether employees who exhibit violent tendencies and have been diagnosed with specific medical conditions that affect their behavior are protected by the Americans with Disabilities Act (ADA). In both cases, the courts held that the workers weren't "qualified individuals" under the ADA because they weren't substantially limited in a major life activity. Even if the individuals met that requirement, the court found, the threat that their conditions posed to other employees barred them from suing under federal law.

Attention deficit hyperactivity disorder

Fred Calef, Jr., worked as production mechanic for Gillette. In the early 1990s, he had several incidents with co-workers that led his supervisors to issue written reports. For instance, on March 10, 1992, Calef and another employee had to be physically separated by a supervisor after they angrily exchanged insults and profanity and squirted oil on each other. Six days later, he was involved in another argument with a group leader.

On September 13, 1995, Calef threatened a 60-year-old female employee who asked him for help with a machine she was using. He allegedly pointed his finger in her face, raised his hand, made a fist, and stated, "Stop calling me or I’ll punch you in the face." Calef admitted raising his voice toward the woman and threatening to hit her.

Following that incident, Gillette issued Calef a final warning. The warning was issued "for a display of conduct that [was] detrimental to the interest of the Company." It explicitly stated that "any single infraction of [company] policy in the future will result in termination from the payroll." He was also referred to Gillette’s employee assistance program, although he chose instead to receive treatment from an outside therapist.

Shortly thereafter, Calef was diagnosed with attention deficit hyperactivity disorder (ADHD) and prescribed Ritalin. According to his doctor, the ADHD didn't cause him to become angry; rather, his condition caused him to deal with anger more impulsively. As a result, he may not respond as well as others when faced with highly stressful situations.

Calef continued to work at Gillette without noticeable incident or infirmity until December 6, 1996. Following a disagreement with a supervisor, he allegedly began acting "irrational and increasingly erratic." The supervisor was very uncomfortable with that behavior and feared for his safety. Within days, the company terminated Calef’s employment.

Calef later sued, alleging that Gillette terminated his employment in violation of the ADA. The trial judge dismissed the suit, and he appealed to the First Circuit.

The federal appellate court held that Calef failed to show that he’s disabled. The ADA defines "disability" as an "impairment that substantially limits one or more of the major life activities." According to the court, Calef wasn’t substantially limited in a major life activity because the individualized analysis didn’t find that he was substantially limited in learning. Although he scored low on several neurological tests designed to evaluate his learning ability, the court found, he had received a high school general equivalency diploma, had taken other training courses after high school, and received on-the-job training through which he gained new job skills.


The court further held that Calef’s history of physical altercations with co-workers was sufficient to find that he wasn’t a qualified individual under the ADA. "Put simply, the ADA does not require that an employee whose unacceptable behavior threatens the safety of others be retained, even if the behavior stems from a mental disability," the court wrote. Thus, the trial judge’s dismissal of his ADA claim was upheld. Calef v. The Gillette Company, No. 02-1444, First U.S. Circuit Court of Appeals (March 11, 2003).

Intermittent explosive disorder

Gary Koshko was employed by General Electric Company (GE) at it Bridgeview, Illinois, facility. Beginning in 1998, he began to experience severe mood swings, which he admitted were "grossly out of proportion to any provocation or precipitating factors."

In September 1999, following an angry outburst on the job, Koshko agreed to take a short-term disability medical leave. One month later, he was diagnosed with intermittent explosive disorder (IED) - which is characterized by a failure to resist aggressive impulses that result in serious assaultive acts or destruction of property. He condition was treated with a combination of drugs and therapy. He was released to return to work, except for overtime, in December 1999.

Several months later, Koshko was called into a meeting with company management. According to him, Bob Watson, the company’s national lighting manager, confronted him in a disdainful and insulting manner, criticized his work product, and stated that he should be working overtime. After the meeting, Koshko allegedly returned to his work area, became angry, began cursing, and threatened to kill Watson. His co-workers reported his conduct to management, and shortly thereafter, his employment was terminated for violating the company’s "rules of conduct."

Koshko sued GE under ADA for failing to accommodate his disability. The company asked the trial judge to dismiss his suit.

The judge first held that Koshko must show that he has a physical impairment that substantially limits one or more of his major life activities. While his doctor stated that he has "serious emotional problems which impacted such major life activities as sleep and rest, thinking, eating, [and] social interaction with others," the judge found that the doctor didn't state that those life activities were "substantially limited" by his condition.

Concerning Koshko’s claim that he was substantially limited in the major life activity of eating, the trial judge further held that he failed to show "how [his] weight fluctuation makes him ‘significantly’ different from an average person in the population." According to the judge, "Gaining 30 pounds of weight is not a ‘substantial limitation’ on the major life activity of eating." The judge also rejected the claim that his sleeping was affected because it took him longer to get to sleep. "Sleep disruptions of this type do not render an individual ‘substantially limited’ in sleeping under the ADA," the judge wrote.

Even if Koshko has a disability, the judge held, he isn't a qualified individual with a disability because he poses a "direct threat" to the health and safety of others. Thus, his ADA claim was dismissed. Koshko v. General Electric Company, No. 01-C-5069, U.S. District Court for the Northern District of Illinois (March 20, 2003).


Bottom Line

It’s important to note that the ADA doesn’t require you to reasonably accommodate or retain a potentially violent employee. That point is clearly articulated in an ADA case from the Seventh Circuit:

It is true that an employer has statutory duty to make a "reasonable accommodation" to an employee’s disability, that is, an adjustment in working conditions to enable employee to overcome his disability, if the employer can do this without "undue hardship." But, we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. Such a requirement would place the employer on a razor's edge - in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone.

Nonetheless, California employers should note that the state standard for determining disability is more employee-friendly. Workers who file claims under state law need prove only that they’re limited - rather than substantially limited - in one or more major life activities. As a result, it will be much more difficult for employers to get those claims dismissed before trial on this point. One would hope, however, that even California courts would be willing to dismiss disability bias cases when the employee has engaged in violent acts that threaten the safety of others. ♦