Case in Point: One day after work, an executive at a North Dakota bank had about 10 to 12 drinks and then drove to a cemetery. He pulled out a gun to kill himself. His sister arrived. He threatened to kill her first if she didn’t leave. Eventually the police came and took him to the hospital where he was admitted for four days of psychiatric care.
Immediately after the employee was discharged from the hospital, his doctor signed a certification that said he could resume all of his work duties in a week. Bank officials weren’t so sure.
The bank’s director of HR told the employee that because of “the impact of your action in the community and on the ability to perform your job,” the bank was placing him on a leave of absence while it reviewed his employment. Shortly after, the bank fired him.
The employee filed an Americans with Disabilities Act (ADA) lawsuit. He argued that his doctor certified that he was able to work and yet the bank “perceived him as disabled,” which would require the bank to try to accommodate his alleged mental illness. The bank denied the claim, arguing that the employee was a safety threat to co-workers and customers and his actions harmed the banks reputation. (Lizotte v. Dacotah Bank, D.N.D, 1/7/10)
What happened next … and what lessons can be learned?
The judge denied the bank’s bid for summary judgment and gave the employee a green light to have his case heard by a jury. The court noted that, “If an individual can show that an adverse employment decision was made by the employer because of a perception of a mental impairment— whether based on myth, fear, or stereotype—the ‘regarded as' prong of being defined as disabled under the ADA is generally satisfied.”
3 lessons learned … without going to court
This is a good wake-up call for HR. The court ruled that there were inferences that the bank, “acted on the basis of myth, fear, or stereotype” and that the employee’s perceived mental impairment was the reason for the termination.
1. Shut up. Refrain from sharing your opinions about an employee’s medical history or condition. Keep your mouth shut or your wallet will be forced open.
2. Give up. Treating physicians are trained medical experts and you must respect their certifications. Give up playing doctor and making your own second opinions.
3. Escalate up. Always seek legal advice before firing an employee who is returning from a hospitalization.
- Audit demographics to spot problems before anyone sues
- Be sure to coordinate with FMLA administrator before firing
- Document all personality conflicts--your records could disprove discrimination in court
- Back RIF decisions with sound fiscal reasons--and prepare to explain them in court
- 1-Minute Strategies: Feb. '11