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Sep 8, 2014

By Eric B. Meyer

The Americans with Disabilities Act requires that employers provide reasonable accommodation to employees with disabilities when doing so will allow them to perform the essential functions of their job.

In Assaturian v. Hertz Corp., the plaintiff had a series of ailments, which the defendant admitted were ADA disabilities. But, one of the symptoms of these disabilities were angry outbursts, which were directed at subordinates.

(The parties agreed that the plaintiff had anger issues, but disagreed about whether the plaintiff had made the defendant aware of either this disabilities or the symptoms of those disabilities).

Do you have to accommodate angry outbursts?

So, angry outbursts, huh? Do you have to accommodate an employee’s angry outbursts at work if symptomatic of an employee’s disability?

According to a federal court in Hawaii, apparently, you do:

If, however, a reasonable juror could find that Hertz’s decision makers knew of his disabilities, and that these decision makers nonetheless terminated him for conduct that was symptomatic of his disability, Assaturian could arguably succeed on his claim for unlawful termination. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1094 (9th Cir. 2007) (holding that an employer may not terminate a disabled employee for “conduct resulting from” the employee’s disability because such conduct is part and parcel of the disability itself); id. at 1095 (“Gambini was therefore entitled to have the jury instructed that if it found that her conduct at issue was caused by or was part of her disability, it could then find that one of the ‘substantial reasons’ she was fired was her bipolar condition.”).”

And bringing a dog to work, too?

OK, I’ll concede that if there truly is an accommodation (medication, maybe) that mollifies the anger issues and allows the employee to perform the essential functions of the job, then, all could be hunky dory.

But, what about this shih-tzu named Sugar Bear?

According to co-workers, Sugar Bear was kept off-leash and urinated on the floor, instead of on the pad that the plaintiff brought to work for the dog to urinate on. (Because employees and customers seeing a used urination pad in the workplace is oh-so much better). Plus, the plaintiff did not request permission from Hertz or inform his off-site supervisors that he was bringing Sugar Bear to work.

Still not enough for the defendant to prevail at summary judgment on a failure-to-accommodate claim:

Assaturian claims that when Tison asked him if he had any paperwork allowing him to bring Sugar Bear to work, he told her that he had “a service animal card” and that Sugar Bear helped with his “anger issues,” and “helped control [his] ’emotions’ and ‘anger.'” Pl. Decl. ¶¶ 16-18. Assaturian also claims that bringing Sugar Bear to work helped him to control his emotions, and that he did not have any workplace incidents during the period of time he brought the dog to the office. Pl. Decl. ¶ 23. Hertz counters that Sugar Bear did not help Assaturian complete the duties of his position, and that Assaturian cannot establish that bringing Sugar Bear to work was a reasonable accommodation. Viewing the record in the light most favorable to Assaturian, there are questions of fact regarding whether he requested to bring Sugar Bear to work as an accommodation, and if he had, whether the request was reasonable.”

No, you probably don’t need to tolerate outbursts

Hopefully, the Ninth U.S. Circuit Court of Appeals (based in San Francisco but also covers Hawaii) reverses this hot mess.

Until then, be wary of “service animal” shih-tzu’s named Sugar Bear and, disabilities or not, don’t tolerate angry outbursts in the workplace. They form the basis for discipline and, ultimately, termination.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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