My co-worker makes violent threats, but my boss says he’s protected by law due to a mental disability

Q: One by one, "Paul" targets employees who stand up to him. He'll pick one person and say things like "you'd better watch your back" or "don't forget, I know where you live." At least one employee has left our company because he scared her.

Until recently I worked in outside sales and so didn't interact with Paul, though I had heard rumors. After I got promoted and spent more time in the office, Paul and I crossed paths and I wound up on his bad side. I've gone to our branch manager, who says his hands are tied because our corporate HR officer, based in Colorado, says we can't fire Paul and none of Paul's comments are "that bad." He told me HR had said that since Paul's behavior stems from a mental disability, the Americans with Disabilities Act protects him as long as he does his job satisfactorily.

I called the HR person myself. She suggested I learn to hear Paul's comments as "static" and "get to know him" as he "hasn't done anything." Is she right? Are we stuck?

A: Not if Paul poses a genuine threat to his co-workers' safety. Although employers do need to accommodate employees with mental disabilities, limits exist. In July, Alaska's Supreme Court ruled in favor of an employer that fired an employee whose threats of violence alarmed co-workers, even though the employee had a mental disability and didn't make actual physical threats (Nicolos v. North Slope Borough).

The employer in this case took the threats seriously, sought a protective order against the employee and took security measures, including employing a security guard and installing protective glass and security cameras. It then fired the employee for not being able to perform an essential job function, "handl(ing) stressful situations without making others in the workplace feel threatened for their own safety."

That employer also benefited from personnel policies that prohibited "any oral or written expression or gesture that could be interpreted by a reasonable person as conveying intent to cause physical harm to persons or property."

Further, the court didn't view the employer as illegally discriminating based on a disability, as their employee hadn't informed them of his disability nor sought reasonable accommodation. Your situation differs in this regard, and because Paul apparently does his job.

In another case involving employee threats, an employee with bipolar disorder put a poster of Charles Manson above the word "inspiration" in his work area. He also frequented websites featuring assault weapons and serial killers. After his employer fired him, he claimed his bipolar disorder caused his behavior and filed suit under the Americans with Disabilities Act. In that case, the Court ruled the employer was not "required to excuse the past misconduct," even if caused by the employee's bipolar disorder. (Calandriello v. Tenn. Processing Ctr. LLC,2009 U.S. Dist. LEXIS 116613 (M.D. Tenn. 2009).

Given the gray areas outlined above, your company may need legal counsel to help it navigate this tricky situation in a manner that both protects Paul's rights as an employee and his co-workers' right to work in a safe environment.

Here are questions for you, your manager and your HR officer to consider:
What facts exist? If rumors now swirl throughout the workplace, it creates a potentially hostile environment for Paul and a fear-inducing environment for others.

What personnel policies exist and do they cover threatening and bullying behavior? The ADA laws don't excuse misconduct and this includes employees who violate their employer's policies by threatening coworkers or acting violently, even if mental illness causes their misconduct.

While the ADA permits employers to take action if they can show an employee poses a direct threat to others that can't reasonably be eliminated, the threat must be based on "an individualized assessment of the [employee's] present ability to safely" perform essential job functions, as based on objective evidence or reasonable medical judgment. For this reason, many employers arrange a fitness-for-duty exam when they reasonably and based on facts believe an employee could harm him/herself or others.

Are you stuck? No.