Legal E-Bulletin - August 2005 The Problem with 'Interacting with Others' Imagine an employee who cannot get along with her coworkers. Diagnosed with a chronic form of bipolar disorder, she is technically competent at her job. However; her relationship with her coworkers deteriorates to the point where her supervisors decide that her presence is counterproductive to the workplace. She had been accused of clashing with her supervisors, confronting and harassing her coworkers, and being intolerant of other races in the workplace. It had gotten to the point where her coworkers felt like they had to "tiptoe" around her to avoid confrontation. This scenario happened at the DiMarzio guitar factory last October in Jacques v. Dimarzio, Inc., 386 F.3d 192 (2nd Cir. 2004). Because of this ongoing conflict, her supervisor negotiated with Audrey Jacques (the employee) so that she could work at home as an outside subcontractor and avoid the conflicts in the workplace. Before the terms of this new arrangement could be agreed upon, a harassment complaint was filed against her by one of her coworkers. When the supervisor consulted with the president of the company about this arrangement, the president rejected the idea and ordered the employee fired. Seven years of litigation and appeals followed. A jury found that DiMarzio terminated the employee because it perceived her as having a disability as defined by the Americans with Disabilities Act (ADA). The ADA defines a disability as an impairment that substantially limits a major life activity.1 The jury decided that DiMarzio regarded the bipolar disorder as substantially limiting Jacque's ability to interact with others and improperly terminated her. On appeal, DiMarzio objected to the jury instructions that 'interacting with others' was a major life activity. Courts have been hesitant to recognize 'interacting with others' as a major life activity. Even though the Equal Employment Opportunity Commission has listed it as a major life activity in its compliance manual,2 courts do not have to defer to the EEOC's position in defining a disability.3 One court rejected 'getting along with others' as a major life activity The first appellate court decision that examined this issue was Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997). The plaintiff in that case, Randall Soileau, had a deteriorating relationship with his supervisor and received a warning/suspension over a dispute. During the suspension, Soileau was supposed to evaluate his own performance and come back with an evaluation plan for improvement. He disclosed his mental illness and asked for accommodations. However, when he did not evaluate his performance or come up with an evaluation plan after his accommodations were granted; he was terminated. The First Circuit reviewed whether Soileau had a disability for the purposes for the ADA. Soileau had argued that his dysthymia had substantially limited his "ability to get along with others". The First Circuit rejected this concept as a major life activity: The concept of "ability to get along with others" is remarkably elastic, perhaps so much so as to make it unworkable as a definition. While such an ability is a skill to be prized, it is different in kind from breathing or walking, two exemplars which are used in the regulations. Further, whether a person has such an ability may be a matter of subjective judgment; and the ability may or may not exist depending on context.4The court criticized that Soileau's "inability to interact with others came and went and was triggered" by things that are normally stressful for other people.5 The court suggested that a more narrowly defined concept like the ability to communicate with others might be more appropriate as a major life activity. Even if 'getting along with others' was a major life activity for the sake of argument, Soileau hadn't proved that he was substantially limited compared to the average person. The evidence showed that he didn't have any difficulty with interacting with people other than his supervisor. Soileau had claimed he was forced to leave bars and stores when they became crowded. The court reasoned that preferring uncrowded places is not out of the ordinary and having to leave these places because there were too many people does not mean that he is substantially limited. Another court saw 'interacting with others' as an essential regular function The Court of Appeals for the Ninth Circuit was the first appellate court to recognize 'interacting with others' as a major life activity in McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999). Randy McAlindin has anxiety, panic, and somatoform disorders and took leave after a work-related incident because of stress. During the leave, he repeatedly asked his employer for a reasonable accommodation to transfer to another job. His doctor had advised him not to return to his previous work. The county refused to make any special effort to transfer him and told him he must follow the usual transfer procedure. McAlindin sued the county for refusing to accommodate him and that he was covered under the ADA because his disorders substantially limited him in 'interacting with others'.6 The Ninth Circuit described 'interacting with others' as an "essential, regular function, like walking and breathing". The Ninth Circuit addressed the First Circuit's concerns about such a vague concept in Soileau by stating that vagueness was not the standard in determining whether something was a major life activity. The court pointed out that a similarly vague concept, "caring for one self", was widely recognized as a major life activity. The Ninth Circuit then had to determine how to decide if an impairment substantially limited one's ability to interact with others. The court recognized that a mere inability get along with coworkers is not enough. It looked outside workplace and noted that McAlindin had showed a pattern of withdrawal from public places and his family because of his mental illness. The court relied on an EEOC guidance and held that a plaintiff must show that his relationship with other people should be characterized on a regular basis by severe problems like "consistently high levels of hostility, social withdrawal, or failure to communicate when necessary." The evidence suggested that McAlindin had a total inability to communicate at times and was impaired in engaging in a meaningful discussion. The court ruled that McAlindin had enough evidence to go to trial on the issue of whether he had a disability. Others courts have avoided deciding this issue by noting that the plaintiff was not substantially limited anyway. While the Circuits in the McAlindin and Soileau cases addressed whether 'getting along' or 'interacting' with others are major life activities, most of the other circuits have avoided this difficult issue. They assumed for the sake of argument that 'interacting with others' is a major life activity, find that the plaintiff failed to establish that he was (or was perceived to be) substantially limited, and avoid having to hold that 'interacting with others' was indeed a major life activity. In Steele v. Thiokol Corporation, 241 F.3d 1248, 1255 (10th Cir. 2001), the Tenth Circuit found that the plaintiff did not present any evidence on how he had trouble getting along with people in general. The difficulties seemed to be limited to the people he worked with. In Rohan v. Network Presentations, LLC, 375 F.3d 266 (4th Cir. 2004), the Fourth Circuit found that the plaintiff's limitations in interacting with others outside her work were a result of the demands of her work, not her impairments. The Fifth Circuit in Shannon v. Henderson, 275 F.3d 42 (5th Cir 2001) (unpublished opinion) assumed that 'socialization' was a major life activity but found that the plaintiff's back injury did not limit his ability to socialize with his friends and family any more than the average person who is tired after working a long day of work. The Second Circuit compromised between the two positions Against this backdrop of cases, the Second Circuit compromised between the holdings in the McAlindin and Soileau cases. The Second Circuit agreed that 'getting along with others' was unworkable as a major life activity. However, it recognized that there is a difference between pleading 'interacting with others' and 'getting along with others' because the latter is more subjective to determine because it "connotes proficiency or success". The Second Circuit accepted that the overarching 'interacting with others' is an essential regular function despite its being more inclusive than 'seeing' or 'standing' and agreed with McAlindin that it is a major life activity. The Second Circuit disagreed with the test used by the Ninth Circuit in determining whether an impairment substantially limited interactions with others. The McAlindin case had stated that the impairment must be characterized on a regular basis by severe problems such as high levels of hostility, social withdrawal, or a failure to communicate when necessary and that a mere cantankerousness is not enough. The Second Circuit found this standard unhelpful to juries who are forced to decide whether a plaintiff is cantankerous or has a high level of hostility. The court pointed out that hostility and argumentative are useful traits in many employment settings. They also stated that this standard would frustrate a civil workplace environment. People theoretically would be more likely to be protected by the ADA by becoming even more unpleasant.7 The Second Circuit held that a plaintiff is substantially limited in interacting with others when he shows that the impairment limits the fundamental ability to communicate with others: This standard is satisfied when the impairment severely limits the plaintiff's ability connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people-at the most basic level of these activities. The standard is not satisfied by a plaintiff whose basic ability to communicate with others is not substantially limited but whose communication is inappropriate, ineffective, or unsuccessful.8The Second Circuit then vacated the jury's verdict so that they can apply this new test since the previous jury instructions had relied on the McAlindin standard. The plaintiff must show that her employer perceived her as being substantially limited in communicating with others. What all of this means.... There are now two courts of appeals that have accepted "interacting with others" as a major life activity, the Second and the Ninth Circuits. Their tests on how to define one is substantially limited (or perceived to be substantially limited) in this major life activity are different. The Ninth Circuit's test is more open ended leaving juries to try to draw the line on a spectrum. A plaintiff must show that his relations with others were characterized by severe problems to be considered substantially limited. Juries are not limited in considering what would be considered problems. The Ninth Circuit gave high levels of hostility, social withdrawal, and a failure to communicate when necessary as examples of problems. The court had noted that McAlindin had a total inability to communicate at times along with having a "subtle impairment in engaging in meaningful discussion".9 This comment suggest that the Ninth Circuit considers 'interacting with others' as involving more than just the ability to communicate with others. In trying to make the test less vague and easier to apply, the Second Circuit has basically redefined "interacting with others" to "communicating with others". The case sets forth the question - is "interacting with others" just limited to the simple ability to communicate? Does the communication even have to be in person? A defense attorney might try to argue that a person is not limited if he can initiate contact and respond to people in other mediums such as email or phone even if he has shown a total inability to communicate in person. By restricting the standard in deciding if a person is substantially limited, they have limited a major life activity that the court itself had admitted was "overarching". The rest of the Circuits have avoided recognizing 'interacting with others' as a major life activity and will probably continue to do so as long as the plaintiff is unable to show that he is substantially limited. The First Circuit's decision in Soileau had never explicitly rejected "interacting with others" as a major life activity since the plaintiff had specifically pleaded the major life activity as "getting along with others".10 Most of the plaintiffs in these circuits have failed to produce evidence that they were substantially limited with others outside the context of work. However, their tests weren't applied with the scrutiny that the Second Circuit had applied. It is not clear if the rest of the Circuits will adopt the McAlindin or Jacques standard should they accept 'interacting with others' as a major life activity. It is clear however that the impairment must be the cause of the limitation11, the limitations must be compared to the general population12, and that the scope of 'interacting with others' does not just include work.13 This demanding standard in determining whether a person has a disability is a hurdle that any plaintiff must clear if he wishes to sue under the ADA.14 1 42 U.S.C. § 12102(2):The term disability means, with respect to an individual, (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. 2 EEOC Compliance Manual (CCH) § 902.3 (1995). 3 See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) ("No agency, however, has been given authority to issue regulations implementing the generally applicable provisions of the ADA"). 4 Soileau at 15. 5 The First Circuit seems to be mixing its arguments. Whether Soileau's inability to interact is any different from other people is a question of whether he is substantially limited in that life activity. To use that argument as an example that this life activity is too amorphous to recognize is confusing the issue. 6 McAlindin also claimed that he was substantially limited in sleeping and 'engaging in sexual relations'. The Ninth Circuit recognized those activities as major life activities. 7 The court doesn't acknowledge that the employer can require the employee to help maintain a civil workplace environment as an essential job function. The ability to work well with others may be considered a necessary job qualification. Those workers who are considered unqualified would not be protected under the ADA. 8 Jacques at 203. 9 Can a subtle impairment ever be considered substantially limiting? The Ninth Circuit looked at the evidence as a whole in considering this subtle impairment along with the total inability to communicate at times in considering whether there was enough evidence to go to trial. 10 Even though they did interchangeably used the two phrases. 11 See Rohan at 275-276. 12 See Shannon; Soileau. 13 See Steele at 1255 ("Mr. Steele has not provided any evidence that his OCD has caused him to have trouble getting along with people in general. Instead, Mr. Steele's difficulties seem to have been limited to the people he worked with"); Toyota v. Williams, 534 U.S. 184, 200-201 (2002)(With respect to the major life activity of manual tasks, "the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job"). 14 See Toyota at 197 ("That these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled is confirmed by the first section of the ADA").  

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