Disability or Threat?: Post-traumatic-stress Disorder in the Workplace
When does an employee's disability become a hazard in the workplace requiring termination? This case involves a discrimination claim brought by a postal employee who, when startled, envisioned his coworkers as would-be attackers. The court's decision provides some helpful guidance in answering this difficult question.
Lanny Jarvis, a decorated Vietnam War veteran, began working for the Postal Service in 1988 after a medical examination determined that he was fit for duty despite several war injuries. Ten years later, he was diagnosed with post-traumatic-stress disorder (PTSD). In 2002, he transferred to the Spanish Fork postal facility and started experiencing PTSD-related incidents with coworkers.
The incidents all involve Jarvis' reaction when he was startled from behind by coworkers. Jarvis struck coworker Cindy Frazier when she came up behind him on two separate occasions: once instinctively hitting her in the chest when she approached him at the time clock and the other time kicking her below the knee when she came toward him as he was buffing the floor.
On another occasion, LesLee Bishop, the officer in charge at the Spanish Fork facility, came up behind him as he was vacuuming and said "Good morning." Startled, Jarvis turned around with clenched fists to defend himself, but relaxed when he realized who it was. He apologized to her, informing her that he had PTSD and that she should advise the rest of the crew that they should approach him from the front or say something in a normal tone of voice before approaching him from behind.
A month or so later, Jarvis struck another coworker, Al Nielsen, in the shoulder after Nielsen startled Jarvis by grabbing him from behind. Although Nielsen was not hurt, Jarvis later explained that he easily could have killed Nielsen or caused him serious injury. Nielsen reported the incident to Bishop and a postal inspector followed up with an investigation.
As a result of the investigation, Jarvis was handed a letter placing him on administrative leave with pay. He received another letter the next day informing him that he was being placed in off-duty-without-pay status and stating that retaining him on duty may be injurious to others. The Postal Service held a due-process meeting after Jarvis appealed this decision. At the meeting, Jarvis admitted that his PTSD was getting worse, that he could no longer stop the first blow, that if he hit someone in the right place he could kill him, and that he could no longer safely return to the workplace. He requested a medical-disability retirement, so that he could avoid being fired. In support of his request, Jarvis arranged for Sonia Hales, a registered nurse, to send Bishop a letter explaining his PTSD symptoms. The letter described Jarvis' PTSD as chronic, severe, and unpredictable and recommended medical retirement because his condition did pose a threat in the workplace.
On July 17, 2003, the Postal Service sent Jarvis a letter informing him that he would be removed from duty as unfit in no sooner than 30 days based upon the two incidents with Frazier, the Nielsen incident, the letter from Hales about his PTSD, and his own statements indicating that he posed a risk to others. That same day, Jarvis filed a complaint with the EEOC alleging discrimination based upon his mental disability. On August 23, 2003, he received another letter from the Postal Service informing him of its decision to fire him. The Postal Service ultimately provided Jarvis with disability-retirement benefits.
Jarvis filed a complaint in federal court alleging that the Postal Service failed to accommodate his disability in violation of the Rehabilitation Act, and retaliated against him for filing complaints with the EEOC. A year into the litigation, the Postal Service moved to dismiss the case by arguing that Jarvis was not qualified to perform the essential functions of his job because he posed a direct threat to his coworker. The district court agreed and found that Jarvis could not be reasonably accommodated by informing his coworker of his condition because it would not eliminate the possibility that he would react violently to being startled accidently. It also rejected Jarvis' retaliation claim because he could not show that the reason offered by the Postal Service for his termination was pretextual. Undaunted by the district court's decision against him, Jarvis continued to battle by appealing the case to the Tenth Circuit Court of Appeals.
The "Direct Threat" Defense
In analyzing Jarvis' discrimination claim under the Rehabilitation Act, which applies to agencies that receive federal financial assistance, the Tenth Circuit examined standards applied under the Americans with Disabilities Act ("ADA"). The ADA standards apply to employers in the private sector as well. Thus, in determining whether Jarvis was a qualified individual under the Rehabilitation Act, the court examined the ADA which defines a qualified individual with a disability as one who "with or without reasonable accommodation, can perform the essential functions of the employment position." As a defense to an allegation of discrimination under the ADA, an employer may show that an individual "pose[s] a direct threat to the health or safety of other individuals in the workplace."
EEOC regulations define "direct threat" as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." The regulations also set forth the following factors to determine whether a direct threat exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The regulations also require that the determination be based on an "individualized assessment" that considers "the most current medical knowledge and/or . . . the best available objective evidence."
Generally, as in this case, the "direct threat" defense must be proved by the employer. Only where the essential job duties necessarily implicate the safety of others is the employee required to prove that he can do the job without endangering others. Whether an employer was justified in terminating an employee based on such a defense depends upon whether the court finds that the employer's decision was objectively reasonable, not upon the court's independent assessment of the threat or upon the employer's good faith in deciding that the employee posed such a threat.
Upon review, the Tenth Circuit found that the Postal Service's determination that Jarvis posed a direct threat was an objectively reasonable decision. The Court decided that the Postal Service had conducted an individualized assessment of Jarvis that relied on the best available objective evidence, which included its interviews, its consideration of the nurse's letter, and the due-process meeting. It rejected Jarvis' argument that the Postal Service should have sought further medical advice or conducted a fitness-for-duty examination where Jarvis' own statements and the letter submitted by his health professional confirmed the factors indicating a direct threat - duration, imminence, severity, and likelihood. His statements and the letter revealed that Jarvis' symptoms would last indefinitely, that he could erupt at any moment if startled, that he was capable of delivering a fatal blow, and that it was highly likely that someone would startle him, even if inadvertently. The court also rejected Jarvis' argument that he would not have posed a direct threat if his coworkers had been instructed not to startle him or approach him from behind. The court reasoned that "it is hard to imagine an active workplace in which there would be no chance of accidentally startling a worker" and the Postal Service "was not required to ignore the risk of inadvertent startling" and wait until something horrific occurred. Jarvis v. Potter, No. 06-4090(10th Cir., Aug. 30, 2007).
Several lessons in survival can be drawn from this case apart from the obvious lesson to avoid startling a lethally-trained war veteran from behind. First, when determining whether an employee poses a threat to his coworkers, the employee and the risk he poses must be assessed individually. While a physical or mental examination may not be necessary in all cases, employers risk incurring liability if they rely upon generalized assumptions about a particular condition. Moreover, employers can get into trouble by relying upon outdated medical information. For example, while fears of HIV were once prominent in the workplace, courts would likely find that an employer's decision to terminate an employee with HIV was objectively unreasonable based on concerns that the employee posed a direct threat to coworkers under most working conditions.
Where an employer determines after an individual assessment that an employee poses a direct threat to his coworkers, employers are justified in
terminating such an employee. Until such a determination can be made, it is a good idea to place the employee on administrative leave to increase safety in
the workplace and to ensure that the decision regarding the risks posed by such employee are well-considered and would stand up in court under the
objectively reasonable test. To that end, it is helpful to seek advice from legal counsel prior to making such decisions. Otherwise, if an employer reacts
quickly and instinctively to such perceived dangers by firing the employee, the employer not only mimics Jarvis' PTSD behavior, but risks serious injury
in the form of ADA liability.