Employees who self-destruct

Mental illness can cause problems at work, and keep employees from getting help.

If my experience is typical (and it may not be), it seems that a significant percentage of employers’ legal and Human Resources problems come from employees who have mental illnesses that are not being treated.

The Americans with Disabilities Act, of course, requires employers to make reasonable accommodations for applicants and employees with disabilities, and that includes psychiatric disabilities. But what I’ve been seeing lately is employees who acknowledge that they have a mental illness but deny that they need treatment or even reasonable accommodations. It’s difficult, if not impossible, for a compassionate employer to help an employee who doesn't think she needs it. And if the employee denies that she needs help, the employer no longer has to attempt to accommodate. Then the employee’s workplace issues escalate, with the end usually being termination of employment.

I'm no psychiatrist, but this is a real thing. And a recent decision from the U.S. Court of Appeals for the Second Circuit illustrates it well.

Johnson v. L'Oreal USA

Amanda Johnson, who has depression and anxiety, was hired by L’Oreal USA as an assistant vice president. She did great for about a year, but then she started missing a lot of work and also having “friction” with co-workers and employees who reported to her. An HR representative met with her about these concerns. Not long after, one of Ms. Johnson’s employees told HR that Ms. Johnson had performance issues and “unannounced absences.” The employee also produced a text message in which Ms. Johnson had told the employee “that she was ‘about to crawl so deep and so far into’ another L’Oreal employee’s ‘a[**] that he will think I live in his f[***]ing small intestines’ and that she would ‘f[***]ing destroy’ him.” (Brackets and asterisks in court’s decision.)

Yikes. Two days later, Ms. Johnson’s boss and the HR rep met with her and discussed the issues with her performance, her unpredictable attendance, and her interpersonal problems. Reference was also made to the text message.

The HR rep asked Ms. Johnson whether she needed some time off, whether they could do anything to help, and whether they could help her find a therapist.

This is the point where Ms. Johnson should have said, “YES!!! THANK YOU! I THOUGHT YOU'D NEVER ASK!”

But, instead, she replied that she didn’t need anything.

A couple of days after that, when Ms. Johnson texted the HR rep that she was working on an “action plan,” the HR rep replied, “I’m here when you are ready. I want you to feel better, that’s the most important thing.” But Ms. Johnson never followed up with an action plan and never accepted the company's offer of help.

Instead, she continued to behave in very inappropriate ways, especially for someone at her level.

For example, when she arrived in Paris for a conference, she tweeted (not a text to one or two co-workers, but a tweet -- on Twitter -- that could be seen by anybody),

’Me and 2 other coworkers just landed and arrived at hotel at 3:15p local time. My boss: let’s meet at 3:30! Me currently:’ followed by a picture of her hand holding a glass of wine. This was followed by other tweets stating, in part, ‘I’m not jumping head first into work right now. I just got off the f[***]ing plane . . . Also I am a GLOBAL VP and my POS company insists on international economy. . . .”

(Punctuation, capitalizations, ellipses, and asterisks in court’s decision.)

When Ms. Johnson said "POS," I don't think she meant "point of sale."


Not surprisingly, her boss learned about these tweets and also belatedly saw the text about getting into that other employee’s bowels. (Until then, he'd only heard about it.) That, coupled with other verbal altercations, the performance, and her unreliable attendance, caused the company to terminate her employment.

Ms. Johnson sued, claiming race discrimination (she is Black) and retaliation under Title VII, and disability discrimination and failure to accommodate under the ADA. (She also brought claims under the New York State and New York City human rights laws.) A federal district court in New York City granted summary judgment to L'Oreal on all claims, with one exception based on jurisdiction. The Second Circuit panel affirmed in all respects. 

Unacknowledged mental illness and the ADA

Anxiety and depression -- and most other psychiatric conditions -- are "substantially limiting" and would normally be considered "disabilities" within the meaning of the ADA and state and local disability discrimination laws. So there was no dispute that Ms. Johnson had a disability and that L'Oreal knew she did.

But the court affirmed dismissal of the disability discrimination claim, because her evidence of "disability-based animus" consisted mainly of “complaints about her performance and her frequent absences.” Things that the company had a perfect right to complain about.

And the ADA doesn’t excuse workplace misconduct – even if the misconduct is caused by the disability.

The failure to accommodate claim was no good, either. Ms. Johnson said that the company should have engaged in the interactive process and given her “meaningful time off” as a reasonable accommodation. But, according to the court, there was no evidence as to how this would have allowed her to perform the essential functions of her job.

The court also found that the company had indeed engaged in the interactive process. That was during the meeting when Ms. Johnson met with her boss and the HR rep, and they discussed her performance, behavior, and attendance issues and “asked questions about what they could do to support her, and offered time off.” And you recall that she denied needing any support or reasonable accommodations.

My two cents

Although I'm glad that L'Oreal won the case, I can't help feeling bad for Ms. Johnson. Her mental illness itself was probably the reason that she refused to get help for her mental illness. According to the advertorial linked above, people with mental illnesses who decline or stop treatment do so for a number of reasons. They may not like the way the side effects of their medications make them feel. They may not think that the medications are working well enough, or quickly enough. They may be afraid to even start -- because if the treatment doesn't work, then what will they do? Some may not perceive that they have a condition that requires treatment.

If Ms. Johnson had acknowledged her own condition and accepted help, she might still have that assistant VP position today.

I wish I had a solution to offer, but I don't. Employers can't force their employees to get medical treatment and probably wouldn't want to, even if doing so were legal. I've sometimes asked clients whether they can enlist a trusted family member to help get the point across to the employee, but that doesn't always work -- either because the employee doesn't have a trusted family member, or because the employee won't listen to the family member. Also, I wouldn't advise an employer to get any third party involved unless the employer is sure that doing so won't backfire.

I guess all we can do is hope that someone, someday, comes up with a treatment that will make people more willing to get the treatment they need. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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