united-states employment discrimination americans-with-disabilities-act bfoq
Is the requirement to have positive attitude discriminatory?
<p>Many companies list &quot;positive attitude&quot; as a requirement for the candidates, including job positions that have nothing to do with customer service or management (for which jobs it could be reasonably justified).</p>
<p>However, some people have major depression or an anxiety disorder that makes it impossible to maintain a positive attitude due to the mere nature of the illness. Would it violate the Americans With Disabilities Act or any other law to discriminate against such a person for their failure to maintain a positive attitude, <strong>given that the disability doesn't prevent the employee from doing their job</strong>? (I have to emphasize this part, as many answers simply ignore it).</p>
<p>Positive attitude, from the top definition in Google:
&quot;In general, having a positive attitude means being optimistic about situations, interactions, and yourself.&quot;</p>
<p>A few things that I have to clarify due to common misconceptions:</p>
<ul>
<li>having major depression isn't same thing as &quot;being grumpy&quot;, as some people here suggested. Both major depression and anxiety disorders are among the most severe mental disorders and often result in a disability to some extent.</li>
<li>not having having positive attitude doesn't necessarily mean having negative attitude; there is the third case in this false dichotomy - maintaining the neutral point of view</li>
<li>even when someone's attitude is negative (i.e. pessimistic), that doesn't mean that they tend to be quarrelsome or unable to get along well with their coworkers</li>
<li>about 3-4% of people in the U.S. have had more than one major depressive episode in their lives, but with proper treatment the illness can be successfully managed in some 60-70% cases (don't think of curing it completely, though. usually it's more like treating type 1 diabetes with insulin, or the ability to move around using crutches for a person with limited mobility), or at least well enough to be employed.</li>
<li>the point above proves that there are at least 5 million people in the U.S. who have major depression (and even more who have anxiety disorders), but are able to get their job done without having &quot;positive attitude&quot;.</li>
<li>answers that imply that the candidate can't perform the job or doesn't have a disability are irrelevant, as ADA does require both.</li>
<li>summing all this up: I think that the requirement for &quot;positive attitude&quot; is simply a pretext for discrimination.</li>
</ul>

<p>Almost certainly not. See, e.g., <a href="https://www.casemine.com/judgement/us/5914b0eaadd7b04934755e02" rel="nofollow noreferrer">Lopez-Mendez v. Lexmark Intern., Inc., 680 F.Supp.2d 357, 375 (D.P.R. 2010)</a></p>
<blockquote>
<p>&quot;This incident, however, is not sufficient to constitute direct evidence of discriminatory animus...<strong>[Defendant's agent]'s anecdote could be interpreted as emphasizing the importance of a positive attitude, rather than plaintiff's interpretation that it expressed a preference for younger male employees...This benign interpretation</strong> seems more plausible...In light of these facts, there does not appear to be any evidence on the record that gives a 'high degree of assurance' that discriminatory animus was behind the decision to terminate plaintiff&quot; (emphasis added).</p>
</blockquote>
<p><strong>NOTE</strong>: OP's original question was simply whether listing 'positive attitude' on a job description was illegal. OP has now changed the question to whether making employment decisions based on a depressed individual's lack of a positive attitude is illegal. Although I have great sympathy for those with mental illness and personally wish the law were different, my answer is still that this is almost certainly legal.</p>
<p>Another example of a court finding attitude to be a legitimate reason upon which to base employment decisions is: Martin v. Allegheny Airlines, Inc., 126 F.Supp.2d 809 (M.D. Pa 2000). In this case, the court accepted as a legitimate reason for promoting one individual over another that the promoted individual &quot;demonstrated good interpersonal skills.&quot; <em>Id</em>. at 817.</p>
<p>A third example is Lloyd v. Swifty Transp., Inc., 552 F.3d 594 (7th Cir. 2009). In this case, the Seventh Circuit explicitly noted that &quot;[t]he employer, not a court, determines what functions are essential, and we will not second-guess that decision.&quot; <em>Id</em>. at 601. It then went on to affirm dismissal of the plaintiff's ADA claim because the employer &quot;said that lead drivers must have knowledge of the mechanics of the trucks and <strong>be able to manage the other drivers on the truck through a positive attitude and ability to get along well with others. But the supervisors in charge of hiring lead drivers testified without contradiction that [the plaintiff] had a negative attitude that drew complaints from other drivers</strong>.&quot; <em>Id</em>. at 601-602 (emphasis added).</p>
<p>After a relatively exhaustive search, I've found no case to counter these pretty clear statements that basing employment decisions on 'attitude' is legal.</p>
<p><strong>FURTHER NOTE</strong>: OP has now modified the question again to add the qualification that the lack of a positive attitude &quot;doesn't prevent the employee from doing their job.&quot; IF this were actually true, then the answer likely becomes that illegal discrimination has occurred because then the employee would be 'otherwise qualified' (a key phrase in employment law litigation). BUT, there is an inherent contradiction in premises in OP's question now because if X is a requirement of a job, and Y employee cannot do X because of Z, then Z is preventing Y employee from doing that job. In other words, if a job requires a positive attitude, then one can't do that job without a positive attitude. Ultimately, what OP's question is really trying to get at is 'what if the employer makes 'positive attitude' a job requirement, but I don't think it should be a job requirement?' Unfortunately, there's almost certainly no legal recourse for this <em>as long as it's a legal job requirement</em> because, to reiterate the 7th Circuit, &quot;[t]he employer, not a court, determines what functions are essential, and [a court] will not second-guess that decision.&quot; <em>Id</em>. at 601.</p>

<p>A person suffering a mental disability is entitled to accommodations in employment. See <a href="https://www.eeoc.gov/statutes/americans-disabilities-act-amendments-act-2008" rel="noreferrer">these various sub-pages</a> from EEOC on the ADA Amentments Act 2008, and <a href="https://www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-health-conditions-workplace-your-legal-rights" rel="noreferrer">this</a> guidance on what an employee's rights are. To wit, &quot;you may have a legal right to get reasonable accommodations that can help you perform and keep your job&quot;. As they explain,</p>
<blockquote>
<p>A reasonable accommodation is some type of change in the way things
are normally done at work. Just a few examples of possible
accommodations include altered break and work schedules (e.g.,
scheduling work around therapy appointments), quiet office space or
devices that create a quiet work environment, changes in supervisory
methods (e.g., written instructions from a supervisor who usually does
not provide them), specific shift assignments, and permission to work
from home.</p>
</blockquote>
<p>However, what constitutes a &quot;reasonable accommodation&quot; is far from obvious. So, (1) the requirement for PMA is not illegal as long as reasonable accommodations are made, (2) you have to ask. In the instance of <a href="https://casetext.com/case/lopez-mendez-v-lexmark-intern" rel="noreferrer">Lopez-Mendez v. Lexmark Intern</a>, no claim of mental disability is on the record and no accommodation was requested. (3) The employee has to show that they have a disability (that you have an impairment, physical or mental, that substantially limits one or more major life activities). &quot;I don't wanna&quot; does not entitle one to an accommodation.</p>

<p>First you'd have to define what &quot;positive attitude&quot; means as a requirement. As someone who deals with moderate depression, I don't view this as being blatantly discriminatory. A positive attitude may mean they want smiles and upbeat tone of voice. It might mean that they don't want people going into fits of anger in the workplace.</p>
<p>Then you have to consider that this &quot;requirement&quot; may not actually be a requirement at all. Your real requirements for your job would ideally be outlined in your job description that you sign upon agreeing to work for the company. If it has, &quot;Employee must maintain a positive attitude,&quot; on that description then you could then say that they are <em>requiring</em> you to have that, and then you might be open for discrimination.</p>
<p>At the point of hiring you, if you suffer from a qualifying mental illness, they would be required to make reasonable accommodations. Reasonable is always hard to judge. Obviously having to buy a handicap accessible piece of heavy equipment for a single employee would not be reasonable. Retrofitting one if possible would be.</p>
<p>What's reasonable for someone with severe depression? Flexible work hours, or being excused from non-essential team building or other &quot;fun&quot; company events. But if you're someone who has to work in a public facing position such as customer service, the things they have to accommodate change. If you cannot communicate in an effective and performant manner your disability does not offer you protection.</p>
<p>An example: If you are incapable of speaking you're not going to be protected when trying to apply for work as a fast food drive through order taker. *Unless a business already has in place the technology necessary to communicate with the general public via non-verbal means.</p>
<p>To go back to mood disorders, in particular depression, if you are unable to maintain a cheery disposition that's one thing. Especially if you are not interacting with the public in a position that smiles and high energy are expected in. But having an outwardly negative or hostile disposition, what a lot of people would refer to as a &quot;bad mood&quot;, is a whole other thing. If I were in one of my &quot;bad moods&quot;, and was being generally negative, or became hostile at my co-workers, I would not expect my condition to somehow protect me from punishment or even termination.</p>

<p>I'll differ from the other answers on a technical ground.  Let's assume that in the OP hypothetical, the following assertions are true:</p>
<ol>
<li>The position description includes a &quot;positive attitude&quot; as a requirement of the position</li>
<li>A &quot;positive attitude&quot; is not a business necessity for this particular position (from the question: &quot;given that the disability doesn't prevent the employee from doing their job&quot;)</li>
<li>The applicant has a disability (<a href="https://www.law.cornell.edu/uscode/text/42/12102#1" rel="noreferrer">42 U.S. Code § 12102(1)</a>) that would prevent them from maintaining a positive attitude to the employer's satisfaction</li>
<li>The applicant makes their disability known to the employer during the hiring process</li>
<li>The employer does not hire the applicant on the sole basis of their inability to maintain a positive attitude due to their disability</li>
<li>The employer is a &quot;covered entity&quot; (<a href="https://www.law.cornell.edu/uscode/text/42/12111#2" rel="noreferrer">42 U.S. Code § 12111(2)</a>)</li>
</ol>
<p>In this case, this would likely be a violation of <a href="https://www.law.cornell.edu/uscode/text/42/12112" rel="noreferrer">42 U.S. Code § 12112a</a></p>
<blockquote>
<p>No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring...of employees...</p>
</blockquote>
<p>The defense to this claim would be <a href="https://www.law.cornell.edu/uscode/text/42/12113" rel="noreferrer">42 U.S. Code § 12113a</a>,</p>
<blockquote>
<p>It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.</p>
</blockquote>
<p>It is obvious here that if the second assertion is true, then this defense fails because the requirement fails the &quot;shown to be job-related and consistent with business necessity&quot; standard.</p>
<p>In a real case, a plaintiff probably would not be able to prove the second assertion even in a light most favorable to them.  As noted by other answers, while a &quot;positive attitude&quot; may not be the real requirement for many jobs, there is latitude to require that employees in many positions are able to communicate with others on a continuing basis without being abrasive or withdrawn.  Proving the fifth assertion is also difficult even with discovery, but more feasible especially in a class action suit.</p>

<p>Maybe.  It all depends.  You assert without proof that jobs can be done with a bad attitude.  But can they be done well enough if at all.  I can envision some jobs that would fail without the proper attitude.</p>
<p>Lack of a positive attitude can be a factor in most  jobs as it affects all the other workers too.  As companies focus more on teams and less on individual contributors anything that would affect the team negatively could be a reason to fire you should you somehow have gotten hired at all.</p>
<p>Why you have a bad attitude is irrelevant unless you can prove you are discriminated against on those grounds because of your officially recognized handicap.</p>
<p>If you could tie your handicap , which is officialy recognized, to your not getting a job offer then  you might have a case.  But you would have had to notify HR of the accommodations you need and be rejected because they were not reasonable. That might be hard to prove and is not a slam dunk win for you.</p>
<p>Any smart company will not hire you for other reasons so you would be out in the cold without a paddle to mix metaphors a bit.</p>
<p>Now if you had gotten  hired and they agreed to the accommodations you said you needed and then they fired you for bad attitude then you probably could win your case <em>IF</em> you could prove it.  No modern company would fire you for that reason as they have so many other ways that are legal to arrange for you to be fired without them being exposed.</p>

<p>It's discrimination, but it's not <em>illegal</em> discrimination. Only certain types of discrimination are illegal.</p>
<h2>Employers aren't required to hire people they can't use</h2>
<p>Employers are not required to accept people whose disability is fundamentally incompatible with their job.  For instance, a submarine museum searching for a chief engineer has every right to snub someone in a wheelchair who cannot physically navigate the spaces inside the submarine.</p>
<blockquote>
<p>An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA. This means that the applicant or employee must:</p>
<ul>
<li>satisfy your job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and</li>
<li>be able to perform those tasks that are essential to the job, with or without reasonable accommodation.</li>
</ul>
</blockquote>
<p><em>From &quot;Who Is Protected&quot; on <a href="https://www.eeoc.gov/publications/ada-your-responsibilities-employer" rel="nofollow noreferrer">this EEOC.gov page</a></em>.</p>
<p>That page goes on at length about what a &quot;reasonable accommodation&quot; is.   But the upshot is if you are unable to do the job, they don't need to give you a job.</p>
<p>As far as &quot;how do you feed your family&quot;, employment is a consensual relationship, not a social safety net.  The social safety net happens via programs like disability and Medicaid.</p>
<h2>The law does not care about your inner mindscape</h2>
<p>The law does not, and cannot, regulate what happens inside your mind.</p>
<p>The core of this question is a fault of logic (or perhaps privilege).  Your logic presumes that your outer <strong>acts of behavior</strong> must match your inner <strong>state-of-mind</strong>.  In other words, you feel that you have an inalienable right to &quot;act out&quot;.</p>
<p>Anyone who works in retail would laugh: smiling against the countless inanities of retail work is a fundamental skill.  But even - well, look at Robin Williams. Outwardly, Williams was exciting, fun, even manic -- but we sadly learned the inward picture was quite different.</p>
<p>The profession of acting is a great example of holding one mood, yet displaying another.  It is a deliberate &quot;disconnect&quot; between &quot;state of mind&quot; and &quot;acts of behavior&quot;.</p>
<p>The law bears on acts of behavior only.</p>
<h2>The employer requirement is about behavior, not state of mind.</h2>
<p>This is the fundamental defect in your logic.  <strong>The employer is not requiring that you inwardly possess a &quot;positive attitude&quot;, only that you <em>choose</em> acts of behavior consistent with that</strong>.</p>
<p>That is a reasonable requirement for a job, <em>particularly</em> a customer-facing job.  The fact that millions of retail workers do this everyday proves it can be done.  As such, the employer absolutely has a right to require such <em>chosen behavior</em> and to refuse an employee <strong>unwilling</strong> or <strong>unable</strong> to engage in that behavior.</p>
<p>If it is lack of will, then it is a refusal to work (which may bear on qualifications for unemployment payments).  If it is lack of skill, it's lack of qualification for the job; discussed in the first part: i.e. not the employer's problem.  If it is a medical condition that that can be confirmed by doctors, then it may be a qualification for <a href="https://en.wikipedia.org/wiki/Occupational_therapy" rel="nofollow noreferrer">occupational therapy</a> (under medical insurance) or social safety-net programs such as disability (which may qualify one for other medical insurance, which itself may come with occupational therapy options.)</p>
