Now, I know a lot of you reading this are out in Las Vegas at SHRM23 right now. And you probably work for companies that provide Employee Assistance Programs (EAPs) to employees that could use counseling or support.
Most of you know that the Americans with Disabilities Act, which bans discrimination against employees who have actual disabilities and those that employers perceive as having a disability, also prohibits employers from inquiring about the nature or severity of a disability unless the inquiry is shown to be “job-related and consistent with business necessity.”
But have you ever wondered whether recommending an EAP to an employee invokes the ADA?
In the federal court decision I read last night, the defendant issued two letters of counseling to the plaintiff, indicating that it was “troubled” by his “incendiary behavior,” which included “yelling” and getting “agitated.” The defendant suggested that the plaintiff remain calm and consider utilizing the EAP or getting anger management.
The plaintiff alleged that these letters of counseling were part of a series of adverse employment actions, the motivation for which was the defendant’s perception that he had a disability.
But the federal court didn’t agree.
Instead, it relied on EEOC guidance, which provides examples of questions that are not likely to elicit information, and are therefore not prohibited. These inquiries include generally asking about an employee’s well-being (e.g., asking an employee who looks tired or ill if s/he is feeling okay or how s/he is doing following the death of a loved one) and non-disability-related impairments (e.g., asking an employee how he broke his leg).
Plus, the ADA definition of impairment “does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.” For example, this earlier Ninth Circuit decision noted that “a ‘cantankerous person’ who has ‘[m]ere trouble getting along with coworkers’ is not disabled under the ADA.” So, even suggestions of anger management counseling do not generally support a claim of discrimination based on a perceived disability.
The issue becomes when the employer knows that an employee’s odd behavior is the byproduct of an underlying disability. The employer need not excuse that employee’s mistreatment of coworkers. But, it may have a duty to accommodate when a reasonable accommodation exists that will allow that person to perform the essential functions of the job.