Question:

Question:  One of my employees is difficult to get along with.  I’ve talked to her repeatedly about being nicer to her co-workers and working cooperatively, and she generally does her job well.  I just gave her a poor performance evaluation based on her inability to get along with others, and she told me she has ADHD.  Is this a disability, and do I have to excuse her difficult behavior?

Answer:

Answer:  Attention deficit hyperactivity disorder (ADHD) is known as one of the most common psychiatric disorders in children, but many people are unaware of how many adults it affects as well.  By some estimates more than half of all children with ADHD will continue to face ADHD-related symptoms in adulthood.  As a result, even without people realizing it, ADHD has a profound effect on our workplaces.
When an employee raises a claim that a physical or psychiatric condition is affecting his or her work, the employee must establish that the condition rises to the level of a disability before being entitled to the many protections afforded by California’s Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA).  Whereas under the FEHA, a person is disabled if he or she can show that he or she suffers from an impairment that “limits” a major life activity, including the ability to work, under the ADA the employee must show ADHD “substantially” limits a major life activity.  Unlike in many other states, in California, “interacting with others” is also considered a major life activity. The first step is to determine whether a specific employee’s ADHD is a disability under state or federal law, therefore triggering the obligation to reasonably accommodate the disability.
A recent 9th Circuit Court of Appeals case held that the plaintiff’s ADHD was not a disability. The Court drew a distinction between a “cantankerous person” with ADHD who has trouble getting along with his coworkers, and someone whose ADHD actually limited their ability to interact with others.  In this recent case, the plaintiff was a skilled police officer, but a cantankerous co-worker who created a hostile work environment for his colleagues. Although the Court recognized that interacting with others is a major life activity, the limitation must be severe, and “mere trouble getting along with coworkers is not sufficient to show a substantial limitation.”  The plaintiff had interpersonal problems, but the problems existed almost exclusively in his interactions with peers and subordinates, and he was otherwise able to engage in normal social interactions. The Court held that the officer’s ADHD did not affect his ability to work.  Therefore, his ADHD was not a disability because it did not substantially limit his ability to work. The Court also recognized that ruling that an employee is disabled because the employee may at times have interpersonal issues would expose employers to potential liability if the employer disciplined ill-tempered employees who create a hostile workplace environment for their colleagues. 
Although in that particular case the Court held that individual’s ADHD was not a disability, the analysis is fact driven.  ADHD is a condition that has the potential to be considered a disability in the employment context.  Each case must be evaluated independently to see if the condition qualifies as a disability.