The Massachusetts Supreme Judicial Court recently ruled that employers do not violate the state’s anti-discrimination law (G.L. c.151B) by discharging an employee for misconduct, when the misconduct is itself caused by the employee’s disability – provided the misconduct is sufficiently “egregious.”
The plaintiff in the case – Mammone v. President & Fellows of Harvard College, 446 Mass. 657 (2006) – was responsible for greeting visitors to Harvard’s Peabody Museum. During the seven years he worked in this position, he received positive reviews. Shortly before his termination, the plaintiff, who is bipolar, apparently experienced a manic episode, with his behavior at work becoming increasingly bizarre.
On his last day of work, he wore a brightly colored, traditional East Indian dress, was adorned with necklaces, bracelets and rings, and, while in the reception area, proceeded to telephone a variety of people (relatives, the police, the American Civil Liberties Union) speaking “very loudly.”
When his supervisor asked him to step into a private room, he replied, “Psst, get away from me, you’re evil.” He later refused several orders from the university police to leave or face arrest for trespassing.
Instead, he responded by sitting down in the middle of the lobby. After the university police dragged him away, and following his subsequent arrest and arraignment on the trespassing charge, he returned to Harvard (entering another nearby museum), despite an earlier admonition from the police not to return “here.”
When his supervisor instructed him to leave again, he pointed his finger at her and the museum’s human resources director and said, “You fucking whack bitches are going down.” Harvard had been in the process of providing him a “final written warning,” but changed the warning to a termination.
The plaintiff sued, claiming that Harvard discriminated against him because of his disability. He contended that Harvard had a duty to offer him a leave of absence as a reasonable accommodation.
In ruling for Harvard, the SJC held that employers do not need to accommodate employees’ disabilities in situations where the employees engage in “egregious misconduct,” even where that misconduct stems from the disability.
In 1995, the court applied the same standard to a case involving a United Airlines customer services representative suffering from alcoholism. Garrity v. United Airlines, Inc., 421 Mass. 55 (1995).
In Garrity, the plaintiff became intoxicated and violated airline policy regarding the use of free drink chits, demanded excessive service and complained about United Airlines in front of passengers.
The SJC said an employee is not shielded from termination if he or she engages in egregious misconduct – even if the misconduct is causally related to the employee’s disability. Garrity, 421 Mass. at 61-63.
The plaintiff in Mammone argued unsuccessfully that the Garrity standard should apply only to cases involving misconduct resulting from drug or alcohol dependence (and not to misconduct arising from other handicaps). The SJC rejected the plaintiff’s argument, saying there was no reason to treat drug or alcohol dependence different from other disabilities.
In a dissent, Judge John M. Greaney wrote that the SJC’s holding would exclude from Chapter 151B’s protection persons with a mental illness that resulted in “occasional displays of inappropriate, and sometimes bizarre behavior.” Garrity, 321 Mass. at 681. The majority rejected this contention, explaining that its holding only “reached employees who engage in egregious workplace misconduct … conduct so inimical to an employer’s interest that any employee would be fired for the same acts.” Mammone, 446 Mass. at 659 n.4, 669.
The SJC mentioned two relevant considerations for a court to use in determining whether the employee’s conduct warranted termination: (1) whether the employer terminated the employee promptly after learning of the misconduct (which was germane to showing that the employer would have terminated anyone for similar misconduct); and (2) whether the misconduct was so egregious that no employer should reasonably be required to retain the employee, even if the employee could perform the job with reasonable accommodation. Mammone, 446 Mass. at 680 n.39.
In a footnote, the SJC also reached another significant issue, holding that employees, at all times, have the duty to raise the issue of reasonable accommodation. Distinguishing Massachusetts from federal law, the court found no duty on the part of employers to initiate a discussion around reasonable accommodation – even in situations where the employer knows that the employee is suffering from mental illness and may be unable to request an accommodation. Mammone, 446 Mass. at 670 n. 25.
In contrast, some federal courts and the Equal Employment Opportunity Commission, in construing the Americans with Disabilities Act, have allowed for an exception in these situations. E.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112, 1114 (9th Cir.2000), vacated on other grounds, 535 U.S. 391(2002).
Judge Greaney, in his dissent, indicated he would impose such “an affirmative duty on the part of employers, in circumstances where it is obvious that a mentally handicapped person is unable to initiate a request for reasonable accommodation, and the employer knows, or should know, of the employee’s need.” Mammone, 446 Mass. at 685-86.
In construing Chapter 151B, the SJC has occasionally departed from federal courts’ interpretations of analogous federal laws.
In situations where it has done so, it has generally taken a more expansive approach. See, e.g., Dahill v. Police Dep’t of Boston, 434 Mass. 233 (2001) (rejecting federal approach regarding the effect of mitigating measures to determine handicap status). Mammone is unusual in that the SJC has issued a ruling – in connection with the employee’s duty to raise the issue of an accommodation – that provides for more limited protection under state law than under federal.
Laurie F. Rubin is a partner in the employment law group at Prince, Lobel, Glovsky & Tye LLP. Learn more about the firm at www.plgt.com.