Don’t touch the bullies – they are a protected species!

The word “crazy” frequently denotes that which is out of the ordinary, shocking, or exceptional.  We often talk about our “crazy” friends, who do things we do not dare to do, or about our “crazy” bosses, whose behavior unsettles us.  Properly used, the word refers to people actually diagnosed with psychiatric disorder.  When we use it in reference to our bully relatives or acquaintances, we do not really mean it as a statement of fact, although we may be unintentionally right. 

Here is a clinical case from an article on ADA protection for mentally ill individuals:

John, a fifty-two-year-old married “workaholic” CPA, is characteristically brusque and irritable with associates in his accountancy practice. Although usually quiet and compulsive in his work habits, he periodically explodes with frustration and rage, often shouting abusive epithets at assistants who have not performed to his expectations. On one or two occasions, John has actually thrown a paperweight across his office, smashing a glass bookcase door and the glass cover of his own desk. During his twenty years’ tenure at the firm, more than a half-dozen secretaries and younger associates have left their employment due to his abusive and humiliating behavior.

One morning during tax season, John suddenly develops crushing chest pain and is taken by an ambulance to the local hospital emergency room.  The doctor who admits him to the coronary care units performs extensive medical and cardiac evaluation and tells John that his arteries are “clean as a whistle.”  Nothing is wrong with John’s heart, although he has experienced a severe panic attack.  The cardiologist refers John to a psychiatrist who diagnoses John as suffering from an anxiety disorder in the form of panic attacks, as well as an Obsessive-Compulsive Disorder. [1]

The facts in many ADA cases offer examples of what is nowadays called workplace bullying.  In one of those cases, Jacques v. DiMarzio, a factory employee with a long history of psychiatric disorder, frequently expressed concerns about work safety and poor ventilation in the facilities.   She had disclosed her psychiatric condition to her supervisors when at one point she had to take a prolonged leave of absence to deal with depression-related health complications.  The mental disorder did not affect the quality of her work, for which she consistently earned average to above average evaluations.  But when the deteriorating ventilation in the factory room sent the employee to the emergency room and she reported the situation to one of her supervisors, her interaction with them changed to “poisonous” over the next several months.  As the employee talked about the unsafe factory conditions with her coworkers and asked her supervisors about possible reasonable accommodations for herself, reports began accumulating that she was harassing and intimidating others, and that she had made several insensitive remarks to her Hispanic-American and African-American coworkers.  Shortly before she was fired for being a problem employee prone to confrontations with her coworkers, the supervisor to whom she had originally disclosed her mental illness told her that she needed help and should see a psychiatrist. 

After exhausting her administrative options, the employee filed suit, which went all the way up to the Second Circuit.  The court determined that the plaintiff was an actually disabled and qualified employee, whose requests for reasonable accommodation had been neglected by her former employer.  The court found while she was not discriminated for her actual psychiatric condition or record, her employers had made the erroneous assumption that her actual mental condition must be determining the adversarial way she interacted at work.[2] 

One of the questions before the Second Circuit was whether interaction with others is a major life activity that a psychiatric condition could impact.  The Second Circuit court joined the Ninth[3] in defining interactions with others as one of the basic major life activities that could be impaired by mental illness but unlike the Ninth, it did not accept deficient communication (e.g., extreme irritability or hostility) as actual impairment.  The court held that mental illness impairs a person’s interactions with others

when the impairment severely limits the plaintiff’s ability to 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 those activities.  […] A plaintiff who otherwise can perform the functions of a job with (or without) reasonable accommodation could satisfy this standard by demonstrating isolation resulting from any of a number of severe conditions, including acute or profound cases of: autism, agoraphobia, depression or other conditions that we need not try to anticipate today.[4]    

The facts of the case reveal that in her interactions with others, the plaintiff had repeatedly exhibited several of the symptoms considered classic in workplace bullying: intimidating others, belittling them publicly, making offensive phone calls, using profanity, and demonstrating ethnic and racial prejudice in reference to coworkers.[5]   The plaintiff admitted that she had repeatedly tormented one of her coworkers, calling her offensive names and making fun of her.  She said the interactions were just “girl-talk,” but part of her psychiatric diagnosis was that the bipolar disorder could render her incapable of good judgment in her interactions with others.

In a similar case, where the Ninth Circuit court held that the bully’s interactions with others had been impaired by her mental illness,[6] the dissenting opinion raised a significant issue:  

[With this opinion we may be inviting] into federal court all but the “cantankerous” to sue those employers with whom they cannot get along.  Employers, beware, now you may have an obligation at the risk of being sued to accommodate someone who does not possess the ability to “get along with others.”  Not only is this “disability” vague, but it is bizarre, ominous, and wholly outside of the group of serious disabilities Congress intended to cover with this statute.  Does this opinion suggest that a person’s foul temperament may no longer be reason to deny that person a job?”[7]

If the coworker with whom the plaintiff in the Jacques v. DiMarzio case had engaged in “girl-talk” had filed an independent lawsuit for verbal assault resulting in certified emotional and mental distress, would it have mattered that the tormentor was mentally ill? 

Communicating is one of the major life activities added to the ADA Amendments Act of 2008.[8]  According to the 2009 revised EEOC Guidelines on ADA and Psychiatric Disabilities,[9] an employee is substantially limited in his or her interactions with others “if, due to the impairment, s/he is significantly restricted as compared to the average person in the general population.

An individual would be substantially limited […] if his/her relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility […].[10]

According to the EEOC guidelines, stress and traits like irritability and poor judgments, while not in themselves mental impairments, may be linked to mental impairments.[11] 

So far, the courts have not had a case in which both the bully and its victim claim psychiatric illness.  In 2008, however, the Indiana courts dealt with the first “workplace bullying” case.  In it, the bullied plaintiff was diagnosed with major depression, anxiety and panic disorder,[12] which, according to the testimony of one clinical and forensic psychologist in the case, are “pretty typical for individuals, who are bullied in the workplace, who are verbally assaulted in the workplace.”[13]  In that case, the defendant was a heart surgeon, and the plaintiff the hospital’s head perfusionist (perfusionists operate the heart/lung machine that keeps the patient alive during surgeries).  The plaintiff perfusionist had left during an open-heart surgery performed by another surgeon to attend to personal business, arranging for one of the other two perfusionists to fill in for him.  Because the third perfusionist was already scheduled to assist in a non-emergency surgery, the defendant was not immediately able to conduct an emergency heart surgery.  Frustrated and angry, he yelled at the two perfusionists who were still on site.  When told of the yelling, the plaintiff immediately protested by resigning as head perfusionist but remaining on staff.  At another surgery a week later, he assisted the defendant.  After the surgery, the defendant approached him to talk about “coverage issues,” such as the one caused by the plaintiff’s previous absence.  The plaintiff responded that he was no more the head perfusionist, so coverage issues was not his concern.  Later in the day, the defendant approached him again about solving the coverage issues, and an argument ensued.  The defendant became angry, his body stiffened, his face turned beet-red, and his jugular vein popped up.  He then walked past the plaintiff with his fists clenched at his side, causing the plaintiff to fear an imminent assault.  Such did not happen, but the defendant told the plaintiff: “You are finished.  You are history.”  At the trial, the expert witness, a prominent advocate for targets of workplace bullies, repeatedly and over objections called the defendant a workplace bully.  The plaintiff won a $325,000 jury verdict on his assault claim; the verdict was reversed by the appeals court but upheld by the Indiana Supreme Court in a 4-1 decision. 

Workplace bullying is a silent epidemic, says Gary Namie, director of the Workplace Bullying Institute.  Most bullies are bosses (72%), most perpetrators are men (60%), and 75% of the women who bully their coworkers target other women.[14]  Reports indicate an escalation in workplace bullying since the economic crisis hit in September 2008,[15] and federal courts have not yet extended the law to prohibit workplace bullying, particularly of those victims who do not fit into a protected group.  Studies show that bullies frequently misuse their power and authority, focusing on personal self-interest, as opposed to the good of the organization.  Unable to communicate, they resort to emotional outbursts, in which they reveal themselves as pointlessly angry, inconsistent and unfair to their coworkers.[16]  As one HR professional puts it, “With a bully, there’s no goal orientation.  There is nothing to do with the job.   It’s simply something that has irritated the individual.  It has maddened him to the point that [he] is driven to make a person’s life miserable.”[17] 

Workplace bullying costs are not cheap: high turnover, absenteeism, low morale, and sagging productivity due to a tense, inefficient atmosphere.  One law professor refers to those costs as “hedonic,” from the Greek work hedone, pleasure: hedonic costs are the expense or loss of positive psychological charge resulting from interactions with strongly negative people.[18]  The Workplace Bullying Institute sees the solution in a legislation defining abusive conduct in the workplace and setting guidelines for employee behavior and possible litigation.  Lawmakers appear to agree: in 2008, New York was considering an antibullying bill, and New Jersey and Connecticut had proposed similar measures.[19] 

Such legislation however may run against already existing laws, most notably the Americans with Disabilities Act.  Anti-bullying advocates describe bullying as a form of deficient communication with others,[20] and communication, as one of the major life activities that could be impaired by mental illness, is specifically included in the ADA Amendments Act of 2008.[21]  Indeed, the patterns of dysfunctional behavior attributed to bullies[22] are identical to the rigid and maladaptive patterns described in psychiatry as typical of Axis I-II personality disorders.[23] 

LOS ANGELES —  A UCLA professor said he warned a university administrator almost a year ago of his concerns about the mental health of a student now accused of brutally stabbing a fellow student in the throat in a chemistry lab.

UCLA history professor Stephen Frank said he met the suspect — 20-year-old Damon Thompson — in his Western civilization class late last year.

Frank — who voiced his concerns 10 months ago — said other professors have reported troubling exchanges with Thompson, who complained he was the constant target of taunts from students in dorms, dining areas and the library.

“My concern was in the context of other violent incidents on campuses around the country,” Frank said.

But a university official told Frank they couldn’t order Thompson to seek psychological services.

Frank told the Los Angeles Times he became worried when Thompson sent several e-mails complaining that classmates sitting near him had made offensive comments to him while he was taking a written exam. In one e-mail, Thompson also accused Frank of taunting him.

“I believe I heard you, Professor Frank, say that I was ‘troubled’ and ‘crazy’ among other things,” Thompson wrote in one of the e-mails. “My outrage at this situation coupled with the pressure of the very weighted examination dulled my concentration and detracted from my performance.”

Frank said he was present during the entire exam and saw nothing to support Thompson’s complaints. Several teaching assistants also said they saw nothing unusual, Frank said.

[1] Mark I. Levy, MD, DFAPA, Mental Illness in the Workplace: Legal and Psychiatric Implications of Mentally Disabled Employees, San Francisco Attorney, The Bar Association of San Francisco, August-September 2001.   Axis II is one of the diagnostic tools in DSM-IV-TR, the authoritative psychiatric diagnostic text in California (and elsewhere) since Money v. Krall, 128 Cal. App. 3d. 378 (1982). 

[2] Jacques v. DiMarzio, Inc., 386 F. 3d 192. 

[3] McAlindin v. County of San Diego, 192 F. 3d 1226 (9th Cir. 1999), cert. denied, 530 U.S. 1243 (2000). 

[4] Jacques v. DiMarzio, Inc., 386 F. 3d 192, at 203-204.

[5] Steve Opperman, Workplace Bullying: Psychological Violence?,, May 4, 2009, at 3.

[6] McAlindin, cf. above.

[7] Id. at 1233-34.

[8] ADA Amendments Act of 2008, § 3(2)(A).


[10] Id., Question 9.

[11] Id., Question 2.

[12] Raess v. Doescher, 883 N.E.2d 790, 793 (2008). 

[13] Raess at 802.  Cf. also, where a self-proclaimed victim of taunting went on to shoot a fellow student.  For a discussion in the same vein, see while most victims of bullies are able to cope constructively, there are also those who become bullies themselves.

[14] Business Insight, Bullying Thrives in the Workplace, Especially in a Downturn, The Salt Lake Tribune, Aug. 17, 2009.

[15] Id.

[16] Teresa Daniel, Tough Boss or a Workplace Bully?  HR Magazine, June 1, 2009, at 2.

[17] Id.

[18] See Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 Geo. L.J. 399 (2006).  

[19] Tara Parker-Pope, When the Bully Sits in the Next Cubicle, New York Times, March 25, 2008.

[20] Cf. discussion in the materials referenced above.

[21] ADA Amendments Act of 2008, § 3(2)(A).

[22] Bill Eddy, Bullies at Work,, October 2008, at 3.

[23] Cf. footnote 1.  According to Dr. Levy, Axis II is one of the diagnostic tools in DSM-IV-TR, the authoritative psychiatric diagnostic text in California (and elsewhere) since Money v. Krall, 128 Cal. App. 3d. 378 (1982).


6 thoughts on “Don’t touch the bullies – they are a protected species!

  1. In addition to being a Ph.D. in Classics, I also hold a paralegal certificate from SFSU. Law is fascinating, and I highly recommend reading the court opinions rather than the media reports.

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