Who are you calling crazy?
I have never minded being called
“crazy.” I suppose being called
“eccentric” is better, but when someone says to me
“you’re crazy,” it usually just makes me
smile. Normally, I have just proven my point in an
unconventional way.
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Antisocial behavior, such as screaming and
throwing things, frequently requires evaluation to determine if
that behavior warrants discipline, or if it is justified by the
stupidity and incompetence of others.
I myself have screamed and thrown things,
though not at others. I don’t recall ever screaming at an
employee, though one of my former partners and I raised the
decibel level in the office one afternoon.
Am I crazy? Or to put it more seriously,
am I mentally ill? And does that mental illness constitute a
disability under the ADA (Americans with Disabilities Act)?
Does it make a difference if I threw a paper clip against the
wall rather than the $300 Dictaphone in the other hand?
I have been thinking about these things
lately because last week, a case was reported where an employee
attempted to sue her company under the ADA because her
supervisor commented on her antisocial behavior. In essence, he
referred to her “crazy” behavior. She quit over the
comment, contending that she was the victim of disability
harassment.
Now, you would think that this case would
die a quick death, especially since she never alleged that she
was disabled due to a mental illness.
Under the ADA, mental illness is a
disability, with some noteworthy exclusions. For example,
pyromania and kleptomania are excluded. If not, I suppose
employers might have to accommodate an employee’s need to
steal matches and lighters to set company property on fire.
Unfortunately, the ADA also covers
employees “perceived” to have a disability. The
employee argued that the employer perceived her to be mentally
ill, and that she therefore had all the protections against
mental disability discrimination.
The court dismissed her charge, but not
without opening the door for future cases of harassment for
perceived disabilities. The court found that she was just a
jerk, and the company properly perceived that.
But what if the employer had perceived
that the employee was psychotic or bi-polar? There’s a
good chance that perception would have changed the entire
complexion of the case. In other words, the company could be
found guilty of “disability harassment.”
It appears now that it might be prudent to
eliminate a few more words from the workplace, relegating them
to words and expressions such as “old man, young fellow,
girl, or boy,” to name some of the less offensive ones.
Employees are no longer “crazy,
nutty, mentally ill, or depressing.” They are antisocial,
confrontational, loud, nasty, vulgar, or some other word that
does not necessarily suggest mental illness.
Choose your words wisely. This legal
craziness will undoubtedly continue.
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollmanlaw.com has articles, sample policies, news and
other information on employee/employer relations.
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