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Focus on ability to perform duties if you worry worker may have mental or emotional problems

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in Discrimination and Harassment,Firing,Human Resources

What should you do if one of your employees seems to be having difficulty coping well at work? Start by not jumping to conclusions about his mental health. Instead, focus on behavior and document any apparent problems.

Then, based on that observation, consider asking for a fitness-for-duty examination. That way, you aren’t treating him as if he were disabled—which could set up the organization for a disability discrimination lawsuit.

Recent case: Jerome had worked for the city of San Francisco for about 20 years when he was terminated after using up all his available leave. His job had been a high-stress one, working with disadvantaged youth and others dealing with severe mental problems.

Jerome’s job description required him to communicate effectively, maintain effective and cooperative working relationships with clients and others and handle complex situations with tact and diplomacy.

Jerome performed well until he began experiencing devastating losses in his personal life. For example, two close family members died in quick succession.

It was then that Jerome began exhibiting behavior that disturbed his co-workers. For example, he told co-workers that he was “crazy” and that if they heard popping noises, they should get out of the way. Needless to say, this alarmed Jerome’s co-workers, who thought he might be suggesting he’d resort to workplace violence.

Co-workers and Jerome’s supervisor also described increasingly distant behavior. Jerome avoided eye contact, sometimes didn’t seem to understand what was being said to him and paced the hallways for no apparent reason.

Then Jerome got into an argument with his facility’s medical director during a staff meeting over whether he should input notes into the computer system or make handwritten notes. Jerome left work early and didn’t show up for several days.

Based on everything co-workers and supervisors reported, Jerome was ordered to undergo a fitness-for-duty examination. Two doctors examined him, and each reported that Jerome was incapable of performing his job. Management then placed Jerome on forced sick leave. He was terminated after he used up the leave.

Jerome sued, alleging that his former employer had wrongly regarded him as being disabled and having schizoaffective disorder.

The city argued that it never considered Jerome disabled. It was merely concerned that he seemed incapable of performing his job. The examinations confirmed that belief. And neither doctor ever revealed a diagnosis, which California law forbids them from doing. Both simply stated their conclusion: that Jerome could not perform his job, based on his job duties and their examinations. Essentially, the city argued, it couldn’t have discriminated against Jerome based on a mental disorder since it never knew the diagnosis.

The court tossed out the case. (Johnson v. City and County of San Francisco, No. 11-CV-04113, ND CA, 2012)

Final note: The city of San Francisco did everything right in this case. It focused on behavior, not diagnosis. It was patient, allowing Jerome every benefit of the doubt. And it provided a concise and explicit job-duties list to evaluators, asking them to assess whether Jerome could perform those functions, not what his diagnosis might be.

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