Recently, in Weaving v. City of Hillsboro, 12-35726, 2014 WL 3973411 (9th Cir. Aug. 15, 2014), a U.S. Court of Appeals addressed ADHD as a mental impairment under the Americans with Disabilities Act (“ADA”). The 9th Circuit has previously recognized that “interacting with others” is a major life activity, the impairment of which is protected under the ADA. However, in this case, the 9th Circuit held that as a matter of law the jury could not have found that ADHD substantially limited the officer’s ability to work or to interact with others within the meaning of the ADA, given the absence of evidence that the officer’s ADHD affected his ability to work, and in light of substantial evidence of his technical competence. Also, the 9th Circuit found that the officer’s interpersonal skills and problems did not amount to a substantial impairment of his ability to interact with others. In other words, absent a real impairment of the officer’s ability to interact with others (i.e., panic attacks, communicative paralysis, or fear reactions), the plaintiff’s failure to “get along” with his co-workers was not protected by the ADA.
In this case, Weaving was diagnosed with ADHD as a child. Weaving ultimately became a police officer and later a detective, joining the Hillsboro, Oregon, Police Department (“HPD”) in 2006. As an adult, Weaving believed that he had outgrown ADHD, and he did not report this condition to the HPD. Over the course of three years, Weaving consistently had difficulty getting along with his co-workers and subordinates, and they often complained that he was often sarcastic, patronizing, and demeaning. In 2009, following a bullying complaint, the HPD put Weaving on paid leave while an investigation was performed into the claims. While on leave, Weaving sought a mental-health evaluation, where a physician found that some of his interpersonal difficulties had been caused by his continuing ADHD. Very soon afterwards, the HPD released the findings of its investigation, determining that Weaving had “fostered a hostile work environment for his subordinates and peers,” was “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” and noting that he “does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.” Consequently, the HPD fired Weaving, who sued under the ADA, claiming that the HPD fired him after he disclosed his ADHD diagnosis. Weaving’s case went to trial and a jury found in his favor, awarding him more than $500,000. The appeal to the 9th Circuit followed.
The 2009 ADA amendments relaxed the standard for determining whether a plaintiff is substantially limited in engaging in a major life activity. However, even under these relaxed standards, the 9th Circuit found that Weaving could not satisfy the lower standard under the current law. The record showed that Weaving was a very skilled police officer who had developed coping and compensatory mechanisms for his ADHD, and had been selected for high-level assignments and promoted. Consequently, the record did not contain substantial evidence showing that Weaving was limited in his ability to work as compared to “most people in the general population.”
In deciding this case, the 9th Circuit stated: “recognizing interacting with others as a major life activity of course does not mean that any cantankerous person will be deemed substantially limited in a major life activity. Mere trouble getting along with coworkers is not sufficient to show a substantial limitation . . . In addition, the limitation must be severe . . . We hold that a plaintiff must show that his ‘relations with others were characterized on a regular basis by severe problems, for example, high levels of hostility, social withdrawal, or failure to communicate when necessary.”
Here, Weaving’s evidence differed starkly from that in other cases where the 9th Circuit had determined that a plaintiff’s ADHD had severely limited a major life activity. He was able to engage in normal social interactions and he had little difficulty in comporting himself appropriately with his supervisors.” Although Weaving’s ADHD “may well have limited his ability to get along with others . . . that is not the same as a substantial limitation on the ability to interact with others.”
Finally, the 9th Circuit stated that “[o]ne who is able to communicate with others, though his communications may at times be offensive, ‘inappropriate, ineffective, or unsuccessful,’ is not substantially limited in his ability to interact with others within the meaning to the ADA . . . To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.”
The take away: In general, employers should not rely on this case to show that either employees with ADHD do not have a potential disability claim or that they will be able to win ADA cases by arguing that an employee’s medical condition is not severe enough to be an ADA disability. ADA cases are assessed on individual issues. However, what this case does show is that even with the very relaxed standards under the 2009 ADA amendments, a court (even the 9th Circuit) is willing to draw a line in the sand.
Louis C. Klein, Of Counsel in Foley & Mansfield’s Los Angeles office, and M. Amadea Groseclose, associate in the Los Angeles office, are members of the firm’s national employment law group. For more information or assistance, Lou can be reached at 213-283- 2100 or firstname.lastname@example.org. Amadea can be reached at 213-283-2100 or email@example.com.