Disability-Related Misconduct

The Americans with Disabilities Act (ADA) protects persons with disabilities from discrimination at the hands of employers, educational institutions, public accommodations, and state and federal facilities. One feature that renders the ADA unique among anti-discrimination measures is that, in addition to proscribing adverse actions on the basis of a person's membership in the protected class, the statute requires covered parties to provide reasonable accommodations for disabled individuals under certain circumstances. Since its enactment in 1990, the statute has posed a number of interpretive challenges for those seeking to comply with its mandates, including what it means to be “disabled,” and the extent to which a particular accommodation is “reasonable” under the circumstances. One question that many courts have grappled with is whether and to what extent accommodations must be made for a disabled person who engages in misconduct as a result of his or her disability. This article examines the divergent approaches that courts have taken in their resolution of that issue.

Overview of the ADA Requirements for Employers

In the employment context, the ADA prohibits discrimination against a “qualified individual on the basis of disability.” 42 U.S.C. ' 12112(a). A person has a “disability” if she has “a physical or mental impairment that substantially limits one or more major life activities … ; a record of such an impairment; or [is] … regarded as having such an impairment.” 42 U.S.C. ' 12102(1). A person is “qualified” for employment if she “with or without reasonable accommodation, can perform the essential functions of the employment position.” 42 U.S.C. ' 12111(8). Employers are required to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. ' 12112(b)(5)(A). Whether a particular accommodation is reasonable depends on a variety of factors; employers are not obligated to offer accommodations that would involve the creation of a new position, the retention of a second employee to supervise the disabled worker, or that would otherwise impose an undue hardship on the company. See Id.

Disciplining Disabled Employees

It is the prerogative of business owners to establish policies and rules governing the conduct of their personnel. Often, misconduct in violation of the company's rules may result in termination. When the misbehaving individual is disabled, however, an employer must consider two questions. First, is the employee otherwise qualified for the job? Second, assuming that the rule violations are a manifestation of a disability, is there some accommodation that could be made that would allow the person to fulfill the essential functions of her position?

The ADA, as interpreted by the EEOC and as applied by the courts, affords no protection to employees who engage in four types of misconduct: that related to the consumption of illegal drugs (on the job or off the job), misconduct caused by alcoholism or the consumption of alcohol, misconduct attributed to a condition that is not recognized as a disability under the ADA, and threats or acts of violence.

Drug Users

The EEOC's Technical Assistance Manual to Title I of the ADA provides that “an individual who is currently engaging in the illegal use of drugs is not an 'individual with a disability'” and, accordingly, an employer “may discharge or deny employment to” or otherwise take adverse action against the person. See EEOC Technical Assistance Manual: Title I of the ADA ' 8.2 (Jan. 1992); see also Id. ' 8.3. This rule applies with equal force to employees who suffer from a recognized disability, even if the disability is identified by the employee as the root cause of his or her decision to use illegal drugs. See Fahey v. City, No. 10-civ-4609, 2012 WL 413990 (E.D.N.Y. Feb. 7, 2012) (rejecting ADA claim of firefighter who tested positive for cocaine use, notwithstanding evidence that the plaintiff developed Post-Traumatic Stress Disorder as a result of his experience working at Ground Zero during the 9/11 terrorist attacks). An employer may not, however, discriminate against a drug addict who no longer is using drugs.

Employees with Certain Psychological Disorders

The ADA excludes from the definition of “disability” a number of psychological conditions and disorders, including transvestism, trans-sexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders that are not the result of a physical impairment, other sexual behavior disorders, compulsive gambling, kleptomania, and pyromania. See 42 U.S.C. ” 12208, 12211(b). Because these are not “disabilities” for ADA purposes, employees who engage in conduct or other manifestations of one of these conditions have no recourse under the ADA if they are terminated on that basis.

Alcoholics

Alcoholics stand on a somewhat higher footing under the ADA. The EEOC's Technical Assistance Manual provides that “[a] person who is an alcoholic is an 'individual with a disability'” for ADA purposes. Technical Assistance Manual ' 8.2 (emphasis added). Thus, an employer may not discriminate against a person merely because he is an alcoholic. However, companies are not obligated to exempt alcoholics from performance standards or personnel policies. Instead, the Technical Assistance Manual recognizes that “[e]mployees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees.” Id. Furthermore, “[a]n employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol impairs job performance or conduct to the extent that s/he is not a 'qualified individual with a disability.'” Id.

Violent Employees

Courts have not hesitated to hold that a fourth category of employees ' those who commit violent acts or threaten to do so ' are outside the protections of the ADA, even if their behavior is related to or caused by a disability. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78-79 (2002) (holding that disabled employees are not otherwise qualified for employment if they present a “direct threat” to their own health and safety or that of others). In some jurisdictions, the employer bears the burden of establishing that the employee's threatening behavior cannot be reasonably accommodated. That burden, where it exists, is easily met. In Bodenstab v. Cnty. of Cook, 569 F.3d 651 (7th Cir. 2009), cert. denied 130 S. Ct. 1059 (2010) (Mem.), for example, the Seventh Circuit held that the defendant county had no obligation to accommodate an employee who announced that he was going in for some medical tests and that, if he were found to have metastatic cancer, he might return to work and “take some people with [him].” Id. at 658 (internal quotation marks omitted); accord Palmer v. Circuit Court of Cook Cnty., 117 F.3d 351, 353 (7th Cir. 1997) (holding that the duty to accommodate disabled employees does not “run[] in favor of employees who commit or threaten to commit violent acts”). And in Newland v. Dalton, 81 F.3d 904 (9th Cir. 1996), the Ninth Circuit had no difficulty concluding that the defendant employer was entitled to terminate an employee who went on a “drunken rampage” with a firearm at a local bar. Id. at 906.

Part Two of this article will discuss disciplining disabled employees.

Andrew A. Nicely is a partner in Mayer Brown LLP's commercial litigation and professional liability defense group in Washington, DC, where he counsels corporations regarding employment issues and represents them in litigation before courts and administrative agencies.

The Americans with Disabilities Act (ADA) protects persons with disabilities from discrimination at the hands of employers, educational institutions, public accommodations, and state and federal facilities. One feature that renders the ADA unique among anti-discrimination measures is that, in addition to proscribing adverse actions on the basis of a person's membership in the protected class, the statute requires covered parties to provide reasonable accommodations for disabled individuals under certain circumstances. Since its enactment in 1990, the statute has posed a number of interpretive challenges for those seeking to comply with its mandates, including what it means to be “disabled,” and the extent to which a particular accommodation is “reasonable” under the circumstances. One question that many courts have grappled with is whether and to what extent accommodations must be made for a disabled person who engages in misconduct as a result of his or her disability. This article examines the divergent approaches that courts have taken in their resolution of that issue.

Overview of the ADA Requirements for Employers

In the employment context, the ADA prohibits discrimination against a “qualified individual on the basis of disability.” 42 U.S.C. ' 12112(a). A person has a “disability” if she has “a physical or mental impairment that substantially limits one or more major life activities … ; a record of such an impairment; or [is] … regarded as having such an impairment.” 42 U.S.C. ' 12102(1). A person is “qualified” for employment if she “with or without reasonable accommodation, can perform the essential functions of the employment position.” 42 U.S.C. ' 12111(8). Employers are required to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. ' 12112(b)(5)(A). Whether a particular accommodation is reasonable depends on a variety of factors; employers are not obligated to offer accommodations that would involve the creation of a new position, the retention of a second employee to supervise the disabled worker, or that would otherwise impose an undue hardship on the company. See Id.

Disciplining Disabled Employees

It is the prerogative of business owners to establish policies and rules governing the conduct of their personnel. Often, misconduct in violation of the company's rules may result in termination. When the misbehaving individual is disabled, however, an employer must consider two questions. First, is the employee otherwise qualified for the job? Second, assuming that the rule violations are a manifestation of a disability, is there some accommodation that could be made that would allow the person to fulfill the essential functions of her position?

The ADA, as interpreted by the EEOC and as applied by the courts, affords no protection to employees who engage in four types of misconduct: that related to the consumption of illegal drugs (on the job or off the job), misconduct caused by alcoholism or the consumption of alcohol, misconduct attributed to a condition that is not recognized as a disability under the ADA, and threats or acts of violence.

Drug Users

The EEOC's Technical Assistance Manual to Title I of the ADA provides that “an individual who is currently engaging in the illegal use of drugs is not an 'individual with a disability'” and, accordingly, an employer “may discharge or deny employment to” or otherwise take adverse action against the person. See EEOC Technical Assistance Manual: Title I of the ADA ' 8.2 (Jan. 1992); see also Id. ' 8.3. This rule applies with equal force to employees who suffer from a recognized disability, even if the disability is identified by the employee as the root cause of his or her decision to use illegal drugs. See Fahey v. City, No. 10-civ-4609, 2012 WL 413990 (E.D.N.Y. Feb. 7, 2012) (rejecting ADA claim of firefighter who tested positive for cocaine use, notwithstanding evidence that the plaintiff developed Post-Traumatic Stress Disorder as a result of his experience working at Ground Zero during the 9/11 terrorist attacks). An employer may not, however, discriminate against a drug addict who no longer is using drugs.

Employees with Certain Psychological Disorders

The ADA excludes from the definition of “disability” a number of psychological conditions and disorders, including transvestism, trans-sexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders that are not the result of a physical impairment, other sexual behavior disorders, compulsive gambling, kleptomania, and pyromania. See 42 U.S.C. ” 12208, 12211(b). Because these are not “disabilities” for ADA purposes, employees who engage in conduct or other manifestations of one of these conditions have no recourse under the ADA if they are terminated on that basis.

Alcoholics

Alcoholics stand on a somewhat higher footing under the ADA. The EEOC's Technical Assistance Manual provides that “[a] person who is an alcoholic is an 'individual with a disability'” for ADA purposes. Technical Assistance Manual ' 8.2 (emphasis added). Thus, an employer may not discriminate against a person merely because he is an alcoholic. However, companies are not obligated to exempt alcoholics from performance standards or personnel policies. Instead, the Technical Assistance Manual recognizes that “[e]mployees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees.” Id. Furthermore, “[a]n employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol impairs job performance or conduct to the extent that s/he is not a 'qualified individual with a disability.'” Id.

Violent Employees

Courts have not hesitated to hold that a fourth category of employees ' those who commit violent acts or threaten to do so ' are outside the protections of the ADA, even if their behavior is related to or caused by a disability. See Chevron U.S.A. Inc. v. Echazabal , 536 U.S. 73, 78-79 (2002) (holding that disabled employees are not otherwise qualified for employment if they present a “direct threat” to their own health and safety or that of others). In some jurisdictions, the employer bears the burden of establishing that the employee's threatening behavior cannot be reasonably accommodated. That burden, where it exists, is easily met. In Bodenstab v. Cnty. of Cook , 569 F.3d 651 (7th Cir. 2009), cert. denied 130 S. Ct. 1059 (2010) (Mem.), for example, the Seventh Circuit held that the defendant county had no obligation to accommodate an employee who announced that he was going in for some medical tests and that, if he were found to have metastatic cancer, he might return to work and “take some people with [him].” Id . at 658 (internal quotation marks omitted); accord Palmer v. Circuit Court of Cook Cnty. , 117 F.3d 351, 353 (7th Cir. 1997) (holding that the duty to accommodate disabled employees does not “run[] in favor of employees who commit or threaten to commit violent acts”). And in Newland v. Dalton , 81 F.3d 904 (9th Cir. 1996), the Ninth Circuit had no difficulty concluding that the defendant employer was entitled to terminate an employee who went on a “drunken rampage” with a firearm at a local bar. Id. at 906.

Part Two of this article will discuss disciplining disabled employees.

Andrew A. Nicely is a partner in Mayer Brown LLP's commercial litigation and professional liability defense group in Washington, DC, where he counsels corporations regarding employment issues and represents them in litigation before courts and administrative agencies.