Protecting Your Company From Hijacking By Snowflakes: Second Circuit Holds That Stress-Causing Inability To Perform A Job Is Not A Disability Under The ADA
The fear of snowflakes melting is not new. When I was at Yale Law School 50 years ago, the policy was already established to shield the fragile egos attending the most competitive law school in the country, from knowledge of their relative performance among their peers: first term pass/fail, no letter or number grades, only four descriptive grades (honors, pass, low pass, fail), and no GPAs or class standings. The policy remains in place.
In the last 50 years, the U.S. education system has caught up with Yale and surpassed it: no grades at all, no criticism, no disturbing views shared (Peter Pan every day: “Happier thoughts, Michael!”). We have entered a world where youngsters, defined very loosely, live in a non-judgmental atmosphere, cossetted by parents, educators, and society at large. Lake Wobegon has moved from satire to warped reality: everyone is above average.
And then they enter the world of work, real life, where judgments are made, where performance is evaluated, where workers are ranked into quintiles, quartiles, or thirds. This is a world where compensation and continued employment depend upon where an employee falls in those rankings. Even when all the rules are followed–expectations are established, regular evaluations are given, assistance and training are offered—the transition to a world of accountability and consequences may be beyond the capacity of a “snowflake” to handle.
The problems employers face in dealing with younger workers are broadly described in a recent Wall Street Journal column by Lauren Weber: “Mental-Health Requests Strain Employers: Companies try to keep up with rising need for special arrangements among young workers” (February 13, 2020, at page B5 of the print edition). Note the careful use of the noun “requests” in the title, communicating that claims of mental illness are not to be assumed to be true in all cases but must be tested for veracity. Moreover, the very second paragraph places these claims of mental illness in the societal context described above: “Many of these new workers are coming to offices from colleges and high schools where they received accommodations, such as extra time to take tests or complete assignments—in some cases from elementary school onward.” In other words, while mental illness is very real and can be met with an appropriate accommodation in many cases (and the author gives examples), there is a real potential for anxiety creep arising from lax societal norms. A healthy skepticism is in order.
More than that. The Americans with Disabilities Act (“ADA”) protects workers with a qualifying disability from being discriminated against in employment. A worker suffering from a disability must be provided with a reasonable accommodation to perform the essential functions of his job. If not, then liability attaches. A threshold issue is whether a claimed disability is qualifying under the ADA. In Woolf v. Strada (No. 19-860-cv; February 6, 2020), the Second Circuit issued a per curiam opinion that should give considerable comfort to HR departments in dealing with this influx of young workers who find the stress of daily work too much to handle. The holding: “[E]mployees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a ‘disability.’”
The facts are as follows: Plaintiff, a sales representative at Bloomberg L.P., suffered migraines that left him temporarily incapacitated, which impaired his work activity and his life activities more generally. These migraines were related to his stress at work. Plaintiff’s “migraines worsened as he received various performance reviews that placed him within the lower third of employees at the company.” Bloomberg gave him specific criticisms and identified various areas for improvement. Plaintiff asked to be transferred to Asia, and was turned down. His reaction to a verbal warning about his performance and to a demand that he show immediate and sustained improvement was to send a 19-page memorandum rebutting the review and rejecting the warning as unnecessary and unwarranted.
Plaintiff, with support from a neurologist, pressed for a change in supervisors. The neurologist opined that a medical leave alone would not significantly mitigate the stress and that the migraines necessitated a change in the current work environment. Bloomberg granted all of Plaintiff’s requests for medical leave and even encouraged Plaintiff to take medical leave to address his medical condition. But it would not reassign him to work under different supervisors. Eventually, after another low performance review, he was fired.
Further context is supplied by the following: When Plaintiff began his employment, he signed a voluntary “self-identification form” stating that he did not have a disability and had no history of physical or mental impairments that substantially limited one or more major life activities. Plaintiff admitted that he would be able to do the exact same job he had been doing if managed by different supervisors.
On cross-motions, the trial court granted summary judgment in favor of Bloomberg, and the Second Circuit affirmed: an impairment does not rise to the level of a disability under the ADA if it only impairs the employee’s ability to perform his or her current job. In so holding, the Second Circuit joined the Sixth, First, Seventh, and Tenth Circuits, whose views correspond with interpretive guidance from the Equal Employment Opportunity Commission. As the Court stated: “[A]n employee alleging a substantial limitation in the major life activity of working must show that the limitation affects the ability to ‘perform a class . . . or broad range of jobs.’” (Emphasis added.)
The value of this interpretation of “disability” is manifest. An employee simply does not have the right under the ADA to dictate the terms and conditions of his or her employment to eliminate stress arising from a claimed inability to perform a single, particular job. He or she cannot call for replacement of supervisors to make life easier, as in this case, even though it might inconvenience the supervisors or put a black mark on his or her record. The employee cannot, in other words, simply hijack the HR department and rewrite the lines of authority to make his or her day more pleasant, even when he or she claims, with medical support, that unless these changes are made, he or she simply cannot do his or her particular job. The ADA is not a tool designed to clear away the inconveniences, or worse, of the daily struggle to succeed in the real world.
Bloomberg did everything right. It went out of its way to support Plaintiff when he sought medical treatment. It gave him evaluations, performance reviews, and second chances, and told him what he ought to focus on to improve his performance. Plaintiff, in turn, was fired and blamed Bloomberg for his failures. Perhaps, Bloomberg L.P. by example, and through the result in this case, will achieve an even more important victory: restoring to satire Lake Wobegon’s claim that all its children are above average, and converting a society that produces snowflakes into one that encourages maturity and reason. Even for future generations of Yale Law School students.