When training supervisors, stress that they must work harder to prevent workplace intolerance toward employees with physical or mental impairments.
Reason: More courts are allowing employees to use the ADA to claim that their workplace fostered a "hostile environment" toward disabled people. That's why it's important to shield employees with mental and physical disabilities who may be covered by the ADA from insensitive comments.
This trend, however, doesn't prevent you from acting to ensure that employees, disabled or not, are capable of performing their duties. If you have a legitimate question about an employee's ability to function in the job, you can monitor or examine that person without fear, as long as your test is job-related and consistent with business necessity.
Recent case: Deputy Sheriff Susan Lanman's co-workers often commented on her mental health, sometimes calling Lanman "nuts" or "crazy" or asking if she was "off her medication." The county suspended her after fellow workers complained of her erratic actions in a couple incidents. After passing a psychological fitness-for-duty test, she returned to work and was assigned to another position. But when she heard a roll-call announcement inviting co-workers to talk to her supervisor if they had a problem with her return, she resigned.
Lanman sued, alleging that those actions combined to create a hostile environment in violation of the ADA.
While the court ruled that employees can bring hostile environment claims under the ADA, it tossed out Lanman's case. The reasoning: Lanman must be able to prove she was "disabled" to bring such a claim. Since she said nothing was wrong with her, she needed to show that her employer perceived her as disabled. But the few teasing comments and psychological fitness test weren't enough to reach that burden. So, no disability, no case. (Lanman v. Johnson County, No. 03-3316, 10th Cir., 2004)
Note: Although the court sided with the employer, the result may have been different if the alleged remarks came from supervisors, not just co-workers. In that situation, the remarks may have supported a claim of hostile environment. The ruling highlights the importance of training your managers and supervisors to be sensitive to language and actions, and to treat employees consistently and with respect.
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