A Case of Anger, Disability and a Dog
A Hawaiian case involving a Hertz supervisor with angry outbursts that he blames on other underlying medical conditions raises a few new questions about reasonable accommodations and the ADA.
By Kristen B. Frasch
The fact that a Hawaiian court has denied a Hertz Corp. motion for summary judgment in a case involving a sales manager's angry outbursts and a Shih Tzu dog he claims he needed in order to refrain from such outbursts caused by various disabilities should raise employers' eyebrows, if not concerns.
So says one employment attorney about the case of John Assaturian vs. Hertz Corp., involving the former's termination from a Honolulu Hertz dealership for bad behavior and his subsequent lawsuit on the grounds of disability discrimination and retaliation.
"There's a message here for HR: The law now expects you to look at the totality of the behavior," says John Cernelich, co-chair of the labor and employment practice at Cleveland-based law firm Calfee. "Anger alone may not qualify as a disability, but in combination with everything else this employee says he suffered, the 'flexible interactive process' "-or reasonable-accommodation conversation between employer and employee under the amended Americans with Disabilities Act-should probably have started.
The question for the U.S. District Court for the District of Hawaii, where the case now returns to be heard before a jury, is whether Assaturian was as initially forthcoming as he claims he was about all the underlying conditions he says caused his angry outbursts with subordinates and colleagues. According to his suit, he was diagnosed with chronic ulcerative proctitis and ulcerative colitis in 2004, and began receiving treatment in 2011 for depression, dysthemic disorder and adjustment disorder.
Just prior to that, he also-without asking Hertz for permission-began bringing his new pet, a Shih Tzu named Sugar Bear, to work with him and continued doing so for about a year. Says Assaturian in his suit, "I could control my emotions and work-related stress with my dog around me [and e]mployees remarked how the dog had a positive effect on my mood and emotions-that it calmed me."
Hertz' human resource department has a different version of the story, one that includes Sugar Bear running freely through the office and urinating on the rug, and a failure on the part of Assaturian to reveal his many symptoms and conditions to his employer. Sugar Bear was eventually barred from the office and Assaturian was eventually fired after his angry outbursts ensued again. He claims his employer failed to accommodate his disability by barring the dog.
The fact that Hertz was unable to throw the case out should be a clear reminder to HR to listen carefully and thoroughly to employees during initial discussions around performance, says Cernelich.
"If that person mentions anything at all about a medical condition," he says, "or, in this case, cites something physical behind those angry outbursts, that flexible interactive process starts right there."
Reasonable accommodations can be suggested by the employee in that conversation, but properly worded questions about the condition can and must also be sent to his or her treating physician, as well as questions about what some reasonable accommodations might be.
Definitions of disabilities under the ADA, ailments that impair "one or more life functions," as the law states, are just part of "the labyrinth the courts are only now finding their way through," Cernelich says. Also included in this legal mess, he says, are just what substantiates a reasonable accommodation's "undue hardship" on an employer (also language of the law) and what a reasonable accommodation is or is not, in and of itself.
"As I tell my clients," he says, "reasonable people can disagree about what a reasonable accommodation is, and often do." That's why the dialogue between the parties is so crucial.
One question that may come out of this case or cases like it is whether animals other than service animals-such as seeing-eye dogs-will have to be allowed as reasonable accommodations because they help calm mental and emotional conditions, not just physical ones, i.e., blindness. (Mind you, no dog in the workplace is enforced under the ADA, but the law does require an attempt by every employer to accommodate each request reasonably unless such an accommodation would cause an undue hardship to the business or present a direct threat to health and safety.)
Cernelich thinks accommodating emotionally or psychologically supportive or curative pets in the workplace will probably not become a problem. "In my 28 years [practicing employment law], I have not had one phone call about an employee who wants to bring his chihuahua to work because it's a therapy dog."
What he and other attorneys stress, though, is the need to be thorough, careful, attentive and receptive to what you hear from employees with performance problems. "Plaintiffs are definitely ... putting everything into the disability soup" today, says Cernelich. "This case is a perfect example of the compilation of many conditions, including the anger, possibly rising to the level of disability."
In a blog post on HRE's The Leader Board earlier this year about people faking service-dog credentials so their dogs could join them in businesses, and whether this problem could ever present itself on corporate America's doorstep, Keisha-Ann Gray, a Proskauer attorney and HREOnline™'s "Legal Clinic" columnist, advises erring on the side of caution.
"Once the employer is aware they have someone who can perform essential functions of the job, but would need help to perform the job based on a disability," the reasonable-accommodation dialogue much begin, she says.
And although "reasonable" does mean it does not create undue hardship or safety hazards, she adds, proving a particular dog might create a risk-or in the case of Hertz vs. Assaturian, might urinate on rugs to an unhealthy degree-could get dicey.
Best advice, says Gray: "If you're thinking of denying a person a request for a reasonable accommodation, for whatever reason, get counsel involved," though in Hertz' case, a jury will now have to decide just what was denied, if anything.
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