The courts agree: Those who threaten violence in the workplace lose their ADA protection.
by Elizabeth Falcone
November 30, 2015
In the wake of the August shooting of a reporter and cameraman for TV station WDBJ-TV in Roanoke, Virginia, many people reacted with shock after learning the shooter was a former employee. Many HR professionals, sadly, likely weren’t as surprised by the tragedy.
Workplace violence is not uncommon. Violent behaviors are sometimes linked to mental disabilities. As was prudent, employers have treated employees who may suffer from mental illness with kid gloves, because of the disability-related issues and because of a desire to avoid actions that might spark workplace violence. On July 28, the 9th Circuit issued a favorable decision for employers in Mayo v. PCC Structurals Inc. In doing so, it joined numerous other circuits in finding threats of workplace violence disqualify an employee from protection under the ADA.
The plaintiff, Timothy Mayo, sued PCC Structurals for discrimination in violation of Oregon’s state disability law, which largely mirrors the Americans with Disabilities Act. Mayo had worked for PCC Structurals since 1987, and was diagnosed with major depressive disorder in 1999. In January 2011, Mayo participated in a meeting where he reported complaints about a supervisor who he claimed was bullying him and others. After the meeting, Mayo told three different co-workers he was contemplating violence against the supervisor. He told one co-worker he “want[ed] to bring a gun down [to PCC] and start shooting people.” His co-workers reported these threats in written statements. When HR received the statements, Mayo was asked if he planned tocarry out his threats, which he denied. Nonetheless, PCC immediately suspended him.
Later, Mayo admitted to police that he had made the threats, and that he had a few people in mind. He admitted to owning guns. When the police asked if he planned to go to PCC and shoot people, his response was, “Not tonight.” Mayo was taken into custody, and to a hospital. He was in custody for six days, and then took a medical leave of absence from PCC. His psychologist cleared him to return to work, declaring he was not a “violent person.” PCC chose to terminate his employment.
PCC’s argument was that Mayo was not a “qualified individual” under the applicable laws after he made the threats of violence. PCC argued Mayo was not protected by the laws prohibiting disability discrimination. The 9th Circuit agreed, holding that he was not qualified at the time of his discharge because he couldn’t perform all essential functions.
It wrote: “An essential function of almost every job is the ability to appropriately handle stress and interact with others.” While an employee “can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions.” The court recognized that “serious and credible threats to kill” render a worker unqualified, and held that employers need not “simply cross their fingers and hope that violent threats ring hollow.”
While it is cold comfort for those at WDBJ-TV, the Mayo case will prove helpful to employers whose employees seriously and credibly threaten others’ lives. Firing the employee is a clear option now. Sadly, the shooter in the WDBJ incident had been fired, and attacked nonetheless. Employers should feel more confident to act swiftly in response to threats of violence. They should also continue to take steps to prevent workplace violence all together by lawfully screening applicants, enforcing a strict anti-violence policy, training supervisors to identify warnings signs of violent behavior, and making sure all employees know an organizations zero-tolerance for threats of violence or actual violence.
To learn more about recent legal issues, see "EEOC Joins 'Gender Identity' Lawsuit."
