Labor & Employment Law Daily Referring employee to EAP for disruptive behavior not evidence of disability bias
Thursday, November 14, 2019

Referring employee to EAP for disruptive behavior not evidence of disability bias

By Wayne D. Garris Jr., J.D.

A children’s hospital analyst was performing her job well, but her employer referred her to its employee assistance program after she accused her supervisors and coworkers of spying on her.

Granting summary judgment in favor of an employer on an employee’s ADA claim, a federal district court in Wisconsin held that while the children’s hospital may have regarded the employee as disabled when it required her to attend EAP sessions, it did not discriminate against her based on a perceived disability when it fired her because it genuinely believed her behavior was negatively affecting morale and causing it to waste resources to investigate her allegations. The employee’s claims that her coworkers were spying on her and sabotaging her work affected her ability to work with others—an essential function of any job, said the court (Walker v. Children’s Hospital of Wisconsin, November 8, 2019, Adelman, L.).

As a performance analytics intelligence analyst for Children’s Hospital of Wisconsin, the employee’s primary job duties were analyzing and providing information to hospital management to use in its strategic decision making. The employee purportedly performed her duties to the employer’s satisfaction.

Unusual behavior. In May 2015, she began to accuse her coworkers of saying negative things about her and her supervisors of monitoring her. She later accused her coworkers and supervisors of secretly altering her work product and spying on her from a van in the company parking lot. When the employer could not substantiate these claims, it recommended that she enroll in the company’s employee assistance program, which was run by a third-party contractor. The employee did not enroll in the program but continued to make accusations against her colleagues.

Mandatory EAP. The employer eventually concluded that the employee’s behavior was negatively affecting her department and the company. It contended that her coworkers were hurt by the accusations and that it was wasting resources to investigate the employee’s claims. As a result, the employee’s supervisors informed her that her participation in the EAP was mandatory. The employee was willing to enter the program but refused to sign the contractor’s authorization form for disclosure of protected health information to the employer. Although her supervisors assured the employee that the employer did not want her health information, but merely wanted to know if she was attending the EAP sessions and following the contractor’s advice, she still refused to sign the form. As a result, the employer suspended her.

Termination. During her suspension, the employer agreed to modify the authorization to limit the information the contractor could share to whether and when the employee attended sessions. She again refused to sign because of a clause on the form which stated that the contractor could not prevent the employer from redisclosing information it received from the contractor. The contractor would not agree to remove the clause because it had no control over the employer’s use of the information. Because the employee declined to sign the authorization form, she was fired. The employee filed suit alleging discrimination based on disability and race.

Disability discrimination. Although the court found the employer arguably regarded the employee as having a mental impairment that caused her to be suspicious of her coworkers when it required her to attend the EAP program, her claim failed because her accusations were disrupting the department and “the ability to work well with others and not disrupt the workplace are essential functions of any position.” The record demonstrated that the employer was genuinely concerned about the employee’s harm to morale in her department and the waste of resources.

Employee’s response. The employee’s only response to the employer was that she should have been allowed to attend EAP session without signing the form, as a reasonable accommodation, because the form itself states that signing is not a requirement for participation in the program. Rejecting this argument, the court noted that the provision applied in situations in which an employee was attending voluntarily. The employer made attendance in EAP a condition of the employee’s employment, so it needed confirmation of her attendance. Finally, because the employee brought her claim under the “regarded as” definition of disability, the employer had no obligation to provide a reasonable accommodation.

No evidence of race discrimination. The only evidence the employee provided in support of her Title VII race discrimination claim was that she “was a Black woman in an overwhelmingly White professional employment environment.” This was not enough to establish a prima facie case of discrimination or to overcome the employer’s legitimate, nondiscriminatory reasons for terminating her.

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