An Employee Who Threatened to Kill Supervisors Prior to Psychological Treatment May Be Fired

An employee who made multiple threats of violence against supervisors prior to psychological treatment is not protected from firing by the Americans With Disabilities Act or Oregon state law according to a recent decision by the federal Court of Appeals for the Ninth Circuit (Mayo v. PCC Structurals, Inc.).

In a brief and incomplete factual overview, several employees, including Mayo, complained that a supervisor was bullying them and one employee reported this on the company hotline. There was a meeting with the company's human resources director and the employees. Shortly after this meeting, Mayo made several threats of gun violence against supervisors and others in the presence of co-workers. These threats were reported by the co-workers. After meeting with Mayo, a senior human resources manager suspended Mayo's employment, barred him from company property, and notified the police. Following a police interview, Mayo was voluntarily hospitalized for six days and then took two months of medical leave. A treating psychologist cleared Mayo to return to work as not being a "violent person," but recommended a new supervisor for him. A treating nurse practitioner made a similar recommendation. At this point PCC officially terminated Mayo although exactly when this decision was made is in dispute.

Mayo's legal challenge to his termination was based upon federal and state disability law. To prove disability discrimination, an employee must demonstrate that that she or he is a qualified individual who meets the statutory definition of disability and suffered an adverse employment action. The Ninth Circuit Court wrote that even assuming that Mayo is disabled; he is not "qualified" since "an essential function of almost every job is the ability to appropriately handle stress and interact with others." Consequently, Mayo could not perform an "essential function" of his job and was not a "qualified individual." This result is true even if the threats resulted from a "major depressive disorder."

The Ninth Circuit noted that "a contrary rule would place employers in an impossible position." Other courts and the Equal Employment Opportunity Commission (EEOC) have reached a similar conclusion. An employer need not conduct an individualized assessment of the potential of future violence by the employee in order to assert a "direct threat" defense to alleged discrimination. In this case, PCC need not provide the "reasonable accommodation" of another supervisor since it "would not have changed his inappropriate response to stress-it would have just removed one potential stressor and potentially added another name to the hit list."

The Ninth Circuit's opinion contained the following concluding paragraph:

"Depression and mental illness are serious problems that affect millions of Americans, including many lawyers and judges. We do not minimize the struggles of those who suffer from these ailments or suggest that all such individuals are incapable of working. But we disagree with Mayo that employers must simply cross their fingers and hope that violent threats ring hollow. All too often Americans suffer the tragic consequences of disgruntled employees targeting and killing their co-workers. While the ADA and Oregon disability law protect important individual rights, they do not require employers to play dice with the lives of their workforce. We thus conclude that PCC's actions in this case were lawful."

This comment briefly reviews a single noteworthy decision and is not intended to provide legal advice. Always consult an experienced attorney in all disability and employment law manners.