Obnoxious Cop Not “Substantially Impaired” Under ADA

Posted 09-08-2014

A surprising (to many) decision from the 9th Circuit Court of Appeals was just published last month on the issue of what mental disabilities are “qualifying” under the ADA. Weaving v. City of Hillsboro, OR (9th Cir.) Case No. 12-35726, August 15, 2014. The plaintiff in the case was a police officer, who started working for the Hillsboro Police Department in 2006. In the ensuing three years, he was described as acerbic, sarcastic, patronizing and sometimes demeaning. When a subordinate complained about bullying, Weaving was put on administrative leave during an investigation. He had been diagnosed with ADHD as a child, but felt he no longer suffered from the disorder. After being put on leave, he consulted a mental health professional, who opined that his continuing difficulty with interpersonal behavior and lack of empathy were due to his ADHD. Weaving asked for reinstatement, with accommodation. The City concluded after the investigation that he had “fostered a hostile work environment” and did not possess “adequate emotional intelligence” to work with a team. The Plaintiff was fired, and filed a disability discrimination/wrongful termination lawsuit in federal court. After trial, the jury found liability under the ADA and awarded him $500,000 in damages; he also recovered his attorneys’ fees.

On appeal by the City, a panel of the Ninth Circuit reversed, holding that the jury could not have reasonably found that his ADHD substantially limited the plaintiff’s ability to work or interact with others. This was one of the first appellate court opinions after passage of The ADA Amendments Act of 2008, which contained specific direction from Congress to the courts that “broad coverage” was intended by the ADA and that federal court decisions had subjected the term” substantial impairment” to too narrow a construction. Recent EEOC regulations addressed this new coverage. Under this new Act and regulations, the court recognized that the ADHD might well have limited Weaving’s ability to get along with others. However, it also noted among many facts that he had worked as a police officer before Hillsboro (apparently successfully), “was able to engage in normal social interactions”, and had little difficulty behaving himself with supervisors. The court then held that the evidence fell far short of establishing a “substantial impairment of a major life activity” as compared to most people in the general population, even under the new EEOC regulations published in 2009. “To hold otherwise,” the court reasoned, “would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.”

This case shows that the courts still may examine whether a disability is “qualifying” under the ADA in appropriate cases. But, employers cannot rely on these determinations alone, as there is too much risk that a court or jury will not agree. When facing ADA claims, employers will still need to show that an appropriate “interactive process” and investigation, and be able to show that the employee was not “qualified” for the job, the accommodation would not make him qualified, or that the accommodation would have created an “undue hardship.”

What this means to you:

To be able to meet those burdens, employers must react promptly and appropriately whenever an employee identifies a disability or asks for an accommodation. Managers are at the front lines of these issues, but cannot address these issues on their own. They must be able to recognize issues, and understand their responsibility to consult HR immediately when these issues are raised.

 Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:35+00:00

About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.