How Government Protects Potential Workplace Killers
On July 8, Doug Williams, a 48-year-old assembly-line worker at the Lockheed Martin plant in Meridian, Mississippi, walked out of a meeting with managers on how to get along with fellow employees—just the sort of meeting encouraged by federal law to assure that everyone appreciates the merit of diversity and that no one is being harassed in the workplace. Minutes later, he returned with shotgun and a rifle. He shot two people in the room and three more on the factory floor. Then, he killed himself.
Co-workers were not surprised. He had long threatened people. He had been to anger counseling. He made it known that he was mad as heck that black employees were getting promotions and he wasn't. Only last month, he put on a KKK hood and paraded around the plant. Told to take it off, he chose instead to leave the factory and stay away for five days.
It's interesting to speculate that perhaps federally-mandated affirmative action, practiced with great élan in companies like this that specialize in federal contracts, pushed this guy over the edge. Even so, a reasonable question to ask is: why a company would continue to employ a person who posed a potential threat to others? Why wasn't he fired rather than put through seminars on working and playing well with others? In short, what the heck were his supervisors thinking in continuing to keep him around?
There's a short answer: The Americans with Disabilities Act, a law passed 13 years ago by the first Bush administration that protects disabled people from job discrimination. It may have sounded like a good idea. The idea of turning someone down for a job he or she can otherwise do solely on grounds that he or she is in a wheelchair offends our sense of fairness.
People often feign surprise at how the law has come to be a lawsuit machine, and done virtually nothing to help the disabled. As the economists at the Federal Reserve bank of San Francisco concluded: "at the end of the 1990s, despite seven straight years of substantial economic growth, a smaller fraction of working-age individuals with disabilities worked and a larger fraction relied on federal disability income transfers than ever before."
But anyone who looked at the law closely knew what was going on. The definition of disability was so vague that it clearly represented yet another massive encroachment of the government and its courts into the workplace. It made the disabled more expensive and more risky to hire. It made them more difficult to fire, and hence less likely to be hired. If anything, workplace discrimination against them has increased rather than decreased. Employers would rather find sneaky ways to keep them at bay than to risk unending lawsuits.
And then there are the absurdities. You see, the ADA covers people with mental impairments. This includes, according to the EEOC's online guide, "any mental or psychological disorder, such as…emotional or mental illness," examples of which include major depression, anxiety disorders, obsessive compulsive disorder, schizophrenia, and "personality disorders."
The ADA covers such disabilities if they "limit one or more major life activities "such as "learning, thinking, concentrating, interacting with others." The disability is covered if it "significantly restricts the condition, manner, or duration which an individual can perform a life activity, as compared to the average person in the general population."
The more severe the disability, the more bound the employer is to accommodate it. Take, for example, the worker who is consistently hostile to fellow employees and bosses. The more hostile, the more the worker enjoys a right not to be fired: "consistently high levels of hostility, social withdrawal, or failure to communicate when necessary," are signs of disability. If they are "long-term or potentially long-term, as opposed to temporary," it is enough "to justify a finding of ADA disability."
Can the employer ask about the existence of an emotional or psychiatric disability before hiring the person? The EEOC is unequivocal: "No." What if the employer begins to suspect that the person poses a direct threat? In this case, the employer can inquire but, such inquiries "must not exceed the scope of the specific medical condition and its effect on the employee's ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat."
So let's say an employer suspects he has a nutcase working at the factory. Once all the bureaucratic hurdles have been cleared, can the employer fire the guy? Not yet. The employer must first make "reasonable accommodation." "For example, room dividers, partitions, or other soundproofing or visual barriers between workspaces may accommodate individuals who have disability-related limitations in concentration." What is reasonable accommodation? The courts are still working on that. They'll get back to you in a few years. Or maybe never.
Does this mean that violent people are protected in civil-rights law? It would seem so. But the EEOC says otherwise: "nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence." An employer can discipline an employee, to be sure, so long as discipline is "job-related for the position in question and consistent with business necessity."
What if a person poses a "direct threat" to others? Can he be fired then, simply as a safety precaution? The EEOC purports to explain that a person who is a direct threat can be fired.
See if you can follow this:
Under the ADA, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a "direct threat." Employers must apply the "direct threat" standard uniformly and may not use safety concerns to justify exclusion of persons with disabilities when persons without disabilities would not be excluded in similar circumstances. The EEOC's ADA regulations explain that "direct threat" means "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." A "significant" risk is a high, and not just a slightly increased, risk. The determination that an individual poses a "direct threat" must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. With respect to the employment of individuals with psychiatric disabilities, the employer must identify the specific behavior that would pose a direct threat. An individual does not pose a "direct threat" simply by virtue of having a history of psychiatric disability or being treated for a psychiatric disability.
Thus do we see that there is a way that a violent person can be tossed out on his ear, provided all similarly behaving nondisabled people have been and would be treated the same way, the threat is significant and high, that the threat is truly job related, and that it cannot be reasonably accommodated using the newest and best available medical knowledge.
In short, if you are preparing to fire someone on grounds that he or she is dangerous, you had better have darn good legal counsel! Chances are you will be sued. Chances are that you will have to settle either with a large cash payment or go to court. You might win in court or you might not. In either case, you will have expended massive resources just to do what the free enterprise system should guarantee in the first place: the right to hire and fire.
So, yes, in the end, it might be true that Lockheed could have fired Doug Williams. But who is to say for sure? In retrospect, it is clear that he was a direct threat. By the standard of good sense, it is clear he was a threat before. But that is not enough. The whole bias of the law works against any definitive judgment to prevent violence before it happens. The culture of the workplace, especially in large corporations, is to overlook oddities, even potentially violent oddities, accommodate them in whatever way, or otherwise keep good sense on the shelf in the name of human rights.
We have no way of knowing whether Williams's supervisors wanted to fire the guy but feared doing so on grounds of the ADA. But it would make sense if Lockheed's managers were far more attentive to the particularities of the law than the safety of the workplace. That is precisely what laws such as the ADA have done. In this case, a federal law ostensibly devoted to making sure employers respect the dignity of life has cost five lives. It has surely cost American employers the right to keep their payrolls free of nutcases who would snap and mow down their fellow workers.
There is no way that the federal government can spell out the particularities of every employment situation and regulate them with an eye toward economic and managerial good sense. If the EEOC did fix up its regs to make it easier to fire the likes of Williams, other cases will come along that similarly cry out for reform. There is really only one alternative to the ADA: let the employers manage their workplace, and let employees choose among them.
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