Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
One of my teachers, Mal Content, has always been curt and lacking in compassion for his students. However, Mal seems to be getting worse and worse. Last week, I was walking past his room and I heard him talking to his students in quite a harsh tone. I looked in on his classroom and, before Mal saw me, I observed him dressing a student down in front of the class for forgetting her homework. He moderated his affect as soon as he saw me, but I remained concerned about how he was treating the student.
I called Mal down to the office yesterday and I confronted him with my concerns. He was appropriately contrite, but then he threw me a curveball. When I asked for assurance that he would act with greater sensitivity toward his students, Mal shrugged and told me that he was not so sure he could do that. He then fished a doctor’s note out of his pocket and presented it to me. The note described an office visit and included a diagnosis of the teacher as having “Hyper-negativity Disorder.” Mal explained that he was working with a therapist, but for the foreseeable future he would likely have episodes when he yells at students. “What can one do?” Mal asked rhetorically, as he went on to explain that the yelling is simply a manifestation of his disability, my accommodation of which he appreciates.
Rest assured that I did not agree to “accommodate” Mal’s disability. Does he really have the right to continue to yell at students? If so, can I at least explain to the students and their parents that they should not take Mal’s yelling personally, given his disability?
Mal does not understand the laws prohibiting discrimination on the basis of disability. Assuming that “Hyper-negativity” qualifies as a disabling condition, Mal does not therefore have license to yell at students. Since protection against discrimination on the basis of disability was first legislated with Section 504 of the Rehabilitation Act of 1973, that protection has been conferred on “otherwise qualified persons.” That means that a person is protected against discrimination on the basis of disability only if they can perform the essential duties of the job, with or without accommodation.
Teachers must maintain appropriate standards in their interactions with students as an essential job duty, and “hyper-negativity” or other disability is no excuse or justification for mistreating students. Accordingly, if Mal’s disability will cause him to be harsh or abusive with students, he is not capable of performing the essential duties of his position.
Once an employee has claimed a disability, the first step is to meet with the employee to determine whether the employee is in fact disabled, and that will typically involve review of medical information or even obtaining an independent medical evaluation. Once the existence of a disability is established, as now provided in the Americans with Disabilities Act, the employer and employee must engage in an “interactive dialog” over whether and how the disability affects the employee’s ability to do his or her job, with or without accommodation. Here, Mal may request a leave of absence to receive treatment or therapy to overcome his Hyper-Negativity Disorder, and granting such leave may be an appropriate accommodation. But he may not insist on working if his disability prevents him from fulfilling the essential duties of his position.
P.S. No, you may not reveal Mal’s disability to parents and students without his permission.