DISABILITY DISCRIMINATION

Is 'interacting with others' a major life activity under the ADA?

The Americans with Disabilities Act (ADA) protects from discrimination in employment individuals who suffer from a physical or mental impairment that substantially limits a major life activity. Certain activities — seeing, hearing, breathing, walking, and caring for oneself — are clearly deemed major life activities for ADA purposes. But what about the ability to interact or "get along" with other employees? Does the ADA cover individuals because they're cantankerous or have difficult personalities, making it difficult for them to interact with their co-workers? The U.S. Court of Appeals for the Second Circuit recently issued a decision addressing those questions.

Background

The following rendition of the facts is based on the testimony at trial as recounted by the Second Circuit. Audrey Jacques worked for DiMarzio, Inc., as a packager and assembler at its electric guitar manufacturing facility from 1989 to 1996. For many years, she suffered from severe depression, for which she had been treated on an inpatient and outpatient basis.

During most of the latter years of her employment with DiMarzio, Jacques had poor relations with her co-workers. Among other things, she repeatedly expressed safety concerns about the company's practice of allowing factory employees to do piecework at home.

By August 1996, Jacques' working relationship with her superiors had become poisonous. According to management, she could no longer effectively do her job because the managers felt obligated "to tiptoe around her and not say something wrong to get her upset and cause a whole scene."

DiMarzio tried to keep Jacques on in some capacity so she could maintain her income. On August 30, 1996, plant manager Michael Altilio told Jacques that because of her conflicts with co- workers, he wanted her to perform her assembly work exclusively at home. But on September 5, 1996, before Altilio and Jacques came to an understanding on the terms of her working at home, one of Jacques' co-workers, Leandra Mangin, lodged a complaint against her for harassment. Mangin claimed that she had received a phone call at work from one of her children and that Jacques answered the phone and announced that the call was for "that b_____," a comment the child overheard. Altilio testified that that was the latest in a series of harassing comments that Jacques had made to Mangin. Jacques acknowledged that she teased and ridiculed Mangin but claimed that it was just "girl-talk and not harassment."

On September 11, 1996, Altilio terminated Jacques based on her numerous conflicts with supervisors and co-workers. Jacques then filed a lawsuit against DiMarzio in federal district court under the ADA. In accordance with the judge's instructions to the jury, the jury found that DiMarzio terminated Jacques because it perceived her as being disabled in the major life activity of "interacting with others" and awarded her a substantial amount of damages. The company then appealed to the Second Circuit.

Court's decision

Individuals with a physical or mental impairment that substantially limits one or more major life activities are disabled under the ADA. Additionally, an individual is considered disabled under the ADA if she's regarded as suffering from a physical or mental impairment that substantially limits one or more of the major life activities, even if she doesn't actually suffer from such an impairment. In this case, Jacques claimed that DiMarzio terminated her because it regarded her as disabled.

The court stated that to prevail under the "regarded as" provision, it isn't enough to show that the employer regarded the individual as disabled. Rather, the individual must show that the employer regarded her as disabled within the meaning of the ADA, which requires three elements:

1. the employee suffered from a physical or mental impairment;
2. the life activity involved constitutes a major life activity under the ADA; and
3. the impairment substantially limits the major life activity identified.

Interacting with others is a 'major life activity'

The Second Circuit noted that other courts of appeals had disagreed on whether interacting with others is a major life activity. It quoted from one decision in which the First Circuit stated that the ability to get along with others is never a major life activity and that "to impose legally enforceable duties on an employer based on such an amorphous concept would be problematic" (Soileau v. Guilford of Maine Inc.). But the Ninth Circuit has concluded that "interacting with others" is as an "essential regular function, like walking and breathing" that "easily falls within the definition of 'major life activity.'"

In this case, the Second Circuit agreed with the Ninth Circuit that "interacting with others" is a major life activity under the ADA.

How to tell whether the ability to 'interact with others' is substantially limited

The Second Circuit ruled that an employee is substantially limited in "interacting with others" when the mental or physical impairment severely limits the fundamental ability to communicate with others. The standard is satisfied when the impairment severely limits the employee's ability to initiate contact with other people and respond to them at the most basic level. The standard isn't satisfied if the employee's communication is only inappropriate, ineffective, or unsuccessful.

The court concluded that because the lower court didn't apply the right standard regarding how one may be substantially limited in interacting with others, the jury verdict had to be tossed out. Jacques v. DiMarzio Inc., 2d Cir., 03-9080, October 5, 2004.

Bottom line

This case vividly shows some of the very difficult determinations employers are called on to make in deciding whether one is disabled or regarded as disabled for purposes of the ADA. The courts are divided over whether interacting with others is a major life activity in the first place. Indeed, the District of Columbia Circuit hasn't ruled on this issue. If you're confronted with a case raising this issue, your determination may be based on which court of appeals has jurisdiction over the employment facility involved.

Even if the court of appeals in your jurisdiction has ruled that interacting with others is a major life activity, you have to then determine what standard the court applies in determining whether the person is substantially limited in that activity. If you follow the approach of the Second Circuit in this case, one is deemed substantially limited in that regard only if he's severely limited in the ability to connect with other individuals at the most basic level. Others whose communication may be inappropriate, ineffective, or unsuccessful won't be protected.

Bear in mind that individuals whose ability to interact with others is substantially limited aren't necessarily protected by the ADA. The individual first must show that she has a physical or mental impairment that has caused this substantial limitation. As the Second Circuit stated in this case, an individual with severe limitations in connecting with others as a result of conditions such as acute or profound cases of autism, agoraphobia, and depression would be considered disabled under the ADA. Individuals who just have difficult personalities or who are cantankerous generally aren't protected by the ADA.

Finally, what should you do if you determine that a particular employee is indeed disabled within the meaning of the ADA because of a substantial limitation in the ability to interact with others? You aren't always prohibited from disciplining or terminating the individual. But before doing so, it's incumbent on you to determine if there's a reasonable accommodation you may provide that would enable the employee to perform essential job functions despite the disability. In this case, the employer considered an accommodation that seemingly may have accomplished that objective — namely, allowing the employee to work at home.

Other accommodations, such as changing the employee's work location or job functions to minimize problematic interactions with other employees, may also be called for. You aren't, however, required to provide any particular accommodation if you can show that it entails an undue burden or unreasonable expense. Thus, for example, if an employee's working at home raises legitimate safety concerns or otherwise exposes you to potential liability, you may well be able to show that accommodating the employee would be an undue burden, and therefore, the accommodation wouldn't have to be provided.