Troublesome Employee
Richard3
24 Posts
We have an employee who simply can't get along with people - to the point where a few of us suspect there might be a mental illness there. His work is not up to par, and he causes stress for a lot of other employees with his persistently negative attitude and argumentative demeanor. We would like to fire him. Can we, even though we suspect menatl illness?
Comments
You have to be careful when considering firing this person - it could get you into a lot of trouble. This employee might be regarded as having a disability and could be covered by the ADA. "Regarding" includes: (1) individuals who are treated by employers as being limited or as being more limited than they really are; (2) individuals whose impairments become limitations only because of the prejudicial attitudes of others--for example, a burn victim who is disfigured; and (3) individuals who have no actual impairment but are mistakenly treated as having one--for example, when it is feared that an individual who had cancer 20 years ago will have a recurrence.
The EEOC has issued guidance on how employers should treat individuals with psychiatric disabilities in compliance with the ADA. Under the ADA, a psychiatric disability is a mental impairment, including "any mental or psychological disorder, such as major depression, bipolar disorder, anxiety disorders (including panic disorders, obsessive-compulsive disorder, and post-traumatic stress disorder), schizophrenia and personality disorders" (EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, citing 29 CFR 1630.2(h)(2)). This might help you out.
You have to be careful when considering firing this person - it could get you into a lot of trouble.
This employee might be regarded as having a disability and could be covered by the ADA. "Regarding" includes: (1) individuals who are treated by employers as being limited or as being more limited than they really are; (2) individuals whose impairments become limitations only because of the prejudicial attitudes of others--for example, a burn victim who is disfigured; and (3) individuals who have no actual impairment but are mistakenly treated as having one--for example, when it is feared that an individual who had cancer 20 years ago will have a recurrence.
The EEOC has issued guidance on how employers should treat individuals with psychiatric disabilities in compliance with the ADA. Under the ADA, a psychiatric disability is a mental impairment, including "any mental or psychological disorder, such as major depression, bipolar disorder, anxiety disorders (including panic disorders, obsessive-compulsive disorder, and post-traumatic stress disorder), schizophrenia and personality disorders" (EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, citing 29 CFR 1630.2(h)(2)). This might help you out.
Richard, don't be an armchair psychiatrist (although irritability is often a sign of depression, especially in men). You don't mention if anyone such as his supervisor or an HR staffer has ever had an informal talk with him about his behavior.
If his work is not up to par, begin your disciplinary steps based on poor performance, not a perceived disability.
First, It's really dangerous to label someone as having an illness. I definitelly would not have this type of discussion with your colleagues, because rumors spread fast and you can have a real problem on your hands if this employee finds out that people in the company have been saying that he's mentally ill, both under disability discrimination law ("regarded as" discrimination) and with defamation.
Having said that, I would treat this as a discipline issue. Bullying, etc., is a big problem in the workplace and needs to be dealt with. Check out these articles on workplace bullies... http://hr.blr.com/whitepapers.aspx?id=2233, http://hr.blr.com/whitepapers.aspx?id=75744, http://hr.blr.com/news.aspx?id=17160.
Good luck!
Has his negative attitude come up in performance appraisals?
One way to handle a negative employee is to challenge him to come up with a better solution when he complains about one area or another. He'll either stop complaining or actually find a better way to do things. Maybe this will result in better performance and in improvements within your company.
You also need to consider if this person is "regarded as" having a mental illness under the ADA - in such as case you might be in big trouble firing him if he is covered by the ADA.