Is there any recourse if you are fired for conduct due to disability?
April 1, 2009 12:41 AM   Subscribe

Fired for misconduct (threats of violence) related to disability. Is there any recourse?

My brother was fired about an hour ago. He has been diagnosed with bipolar disorder and has been with the company for six years. Last week, he came into work while manic and told his supervisor that he "felt like hitting someone". He did not make a specific threat against anyone but was describing how he felt. His supervisor recommended that he go home. He then checked into a hospital and was released yesterday, doing much better. He has never had a manic incident at work before. He has been very good at his job and won numerous awards. His medications have been changed to better control the mania.

An hour ago he went to work and was fired for "threats of violence".

He has kept the company in the loop about his disorder, providing medical documentation when needed and always being honest with his supervisor because they encouraged this. That is the only reason he told them how he was feeling, and now he has been fired for it. It is a very large company and he is a full-time employee. He is also in the union.

Does he have any recourse at all? We assume he needs to speak with an employment lawyer, but is there any hope? He will be meeting with the head union rep on Monday, is there anything he can do before then? He sees his doctor tomorrow, is there anything he needs from the doctor? Please help if you can. Thank you.
posted by Danila to Work & Money (15 answers total)
Where? If it's the US, employment laws do vary significantly by state.
posted by crapmatic at 12:48 AM on April 1, 2009

Response by poster: Oh I'm sorry. In Pennsylvania.
posted by Danila at 12:51 AM on April 1, 2009

Pennsylvania is an at-will state, but in some cases employers have to go through a long process before terminating employees for documented health reasons, else they open themselves up to being sued for wrongful termination. IANYL, IANHL, but I would certainly recommend that your brother talks about his circumstances and documentation with an employment lawyer.
posted by Blazecock Pileon at 2:23 AM on April 1, 2009

You say he is represented by a union.

He should go and talk to his union steward as soon as possible. This is a bread and butter issue for the union and they will be able to tell him whether he has any practical recourse and assist him if there is.
posted by geos at 4:30 AM on April 1, 2009 [1 favorite]

This is what he pays union dues for, bring his documentation to that meeting.
posted by nomisxid at 6:21 AM on April 1, 2009

Best answer: The ADA definitely covers bipolar disorder and there may be a cause of action under the ADA for your brother. Since he is in a union that is the logical first step. The union is paid for already and lawyers are expensive so I would start there first and if that fails then you can think about hiring a lawyer. Even without his medical condition I don't think it is so easy to fire a union member on these facts alone. My guess though is that the story is more complicated and there have been prior incidents. In preparation for meeting with the union rep, and especially in preparation for meeting with a lawyer he might want to start writing out the whole history of work incidents, his communications with his employer regarding his disability, and changes in his condition and treatment during the course of his employment.
posted by caddis at 7:25 AM on April 1, 2009

well, if he's seeing his doctor tomorrow, just be sure to get documentation of his bipolar, documentation of his medicine changes, etc. just in case your union rep will need it.
posted by misanthropicsarah at 7:27 AM on April 1, 2009

Best answer: The standard warnings about suing your employer still apply though. If his employer doesn't want him to work there any more, he's not going to have a fun time working there. Even if he ends up with his job back, there's nothing stopping his employer from antagonizing him or simply firing him for other reasons.

Although the employer is most likely in the wrong and he can probably get legal relief, it may be worthwhile to consider if it's worth his time. Consider simply looking for another job.

If he does decide to pursue legal options, the union might not necessarily provide the best legal representation. Employment law allows for payment of a lawyer's fees by the (losing) employer, so he feels confident in his case, he should also consider finding his own lawyer rather than the union's lawyer.
posted by saeculorum at 8:41 AM on April 1, 2009

Even if he ends up with his job back, there's nothing stopping his employer from antagonizing him or simply firing him for other reasons.

Yes there is, the union.
posted by caddis at 8:45 AM on April 1, 2009

Yes there is, the union.

Funny, doesn't seem to have worked so far.

Union membership merely provides legal representation in the case of employer harassment. It in no way stops employer harassment.
posted by saeculorum at 8:48 AM on April 1, 2009

Funny, doesn't seem to have worked so far.

Well, you do need to advocate for yourself with the Union. Seek out a rep, tell him what is going on, et cetera.

If the brother was able to be re-instated I would hope that the Union would be all over the employer, documenting how the brother was treated.
posted by mlis at 9:01 AM on April 1, 2009

Best answer: In general the Americans with Disabilities Act does not require an employer to overlook misconduct, even where the misconduct is caused by a "disability" as defined by that law. There is a well settled body of case law on that point, so the ADA should not be viewed as prohibiting discharge just because his outburst was caused by his bipolar condition. However, if I were your brother's lawyer (which I am obviously not, and this is not intended as legal advice to him) the question I would be asking is whether other employees without disabilities have been treated more favorably -- i.e., whether other employees have made similar remarks and not been discharged. That could constitue a violation of the ADA.

And, as others have said, this may or may not have constituted "just cause" for termination under the collective bargaining agreement, so the grievance process may be another potential avenue to pursue.
posted by pardonyou? at 9:03 AM on April 1, 2009 [1 favorite]

Response by poster: hmm yes, these are very good answers, thank you.
posted by Danila at 3:00 PM on April 1, 2009

I used to have a good friend who was bipolar. He took his own life last summer. There's an askme about it in there somewhere. He and I worked together for a long, long time, and I was actually part of the team that fired him while manic. None of us wanted to, however erratic behavior had been documented, noted, and was not a secret to other employees or clientele. We were obligated to provide a safe working environment for both of those groups, and by allowing him to stay on-board we were opening ourselves up to a massive lawsuit if we kept him onboard knowing that conditions existed for something dangerous to happen. In his case he never threatened, he just became extremely reckless with is fun-havingness. Not to mention, we didn't want anyone getting hurt.

I am not a lawyer, but I can assume that a documented threat of violence is a documented threat of violence, protected class or not. If he wasn't fired and proceeded to ever hit someone, OR to even intimidate them and make it impossible to do their job or afraid to come to their job, their legal position would be....well, they wouldn't have one.

He was my best friend and I miss him every day. I'm glad your brother got treatment, but please PLEASE don't make excuses for his behavior and/or lack of treatment, or engender others as somehow responsible. Not saying you are, just...don't ever start.
posted by TomMelee at 6:41 AM on April 2, 2009

Response by poster: Just as an update, after meeting with the union rep my brother was rehired and will switch to the day shift. Thanks for all of your help. Knowing that this was all within the purview of his union helped us a lot. He would have hired a lawyer if necessary, and he did speak to a few, but thankfully it wasn't necessary to go that far.
posted by Danila at 12:30 AM on April 22, 2009 [1 favorite]

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