Disability-Related Misconduct

For example, a grocery store employee who was disciplined for uttering racial epithets argued that his inflammatory remarks were an uncontrollable symptom of Tourette's Syndrome, for which the store was obligated to make reasonable accommodations. See Ray v. The Kroger Co., 264 F. Supp. 2d 1221 (S.D. Ga.2003), aff'd 90 Fed. Appx. 384 (11th Cir. 2003). A university professor argued that his non-collegial and disruptive behavior was caused by obsessive compulsive disorder, and that his termination therefore was in violation of the ADA. See Newberry v. E. Tex. State Univ., 161 F.3d 276 (5th Cir. 1998). And employees caught sleeping on the job have attributed their drowsiness to a variety of medical causes, including insomnia, sleep apnea, and medications prescribed for back injuries. See, e.g., Hill v. Kan. City Area Transp. Auth., 181 F.3d 891 (8th Cir. 1999); Leschinskey v. Rectors & Visitors of Radford Univ., No. 7:11cv189, 2011 WL 5029813 (W.D. Va. Oct. 24, 2011). Whether an employer is privileged to discipline employees for conduct that may be related to a disability depends on the jurisdiction in which the employer is located, whether the employer is aware of the asserted disability and the employee's need for an accommodation prior to imposing discipline, and the extent to which the disability and associated misconduct can reasonably be accommodated.

EEOC: Misconduct Related To a Disability Can Be Disciplined

As noted in Part One of this article, the ADA bars employers from discriminating against a qualified person with a disability with respect to the terms and conditions of employment. In simple terms, one cannot terminate an employee merely because he or she has a disability. If an employee's disability causes him to violate a workplace rule and the company terminates his employment, was the employee terminated because of his disability, or because of the violation of the employer's rules? The statute does not answer this question directly; the EEOC, for its part, has opined that “an employer is not required to excuse past misconduct even if it is the result of the individual's disability.” See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (“EEOC Enforcement Guidance”), Q&A No. 36 (Oct. 17, 2002). Most courts have agreed with the EEOC's approach. The Fourth Circuit, for example, has held that “misconduct ' even misconduct related to a disability ' is not itself a disability,” and may be grounds for discipline. Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 n.3 (4th Cir. 1997). Stated another way, the ADA “does not excuse workplace misconduct [that] is related to a disability,” and therefore, “on-the-job misconduct and poor work performance always constitute legitimate and nondiscriminatory reasons for terminating employment, even where the misconduct is caused by an undivulged psychiatric condition.” Canales-Jacobs v. N.Y. State Office of Court Admin., 640 F. Supp. 2d 482, 500 (S.D.N.Y. 2009).

EEOC Does Not Require That Past Disciplinary Actions Be Rescinded

Courts following the EEOC approach generally will not require employers to rescind disciplinary actions that already have been taken against a disabled employee who violated the employer's policies. Thus, an employee who has received a written warning for violating a workplace rule will not be entitled to have it expunged from his file, and a worker who has been terminated for misconduct will not be entitled to reinstatement. This rule is applied inflexibly in instances where the employer was not aware of the employee's disability at the time of the disciplinary action. See, e.g., Canales-Jacobs, 640 F. Supp. 2d at 487-88 (holding that a court clerk who suffered from clinical depression was not entitled to a lesser sanction than dismissal for yelling at a judge, throwing court papers, and subjecting the public to a “barrage of obscenity”); Calandriello v. Tenn. Processing Ctr., LLC, No. 3:08-1099, 2009 WL 5170193 (M.D. Tenn. Dec. 15, 2009) (holding that an employer was entitled to terminate a technician who manifested a preoccupation with serial killers and weapons, notwithstanding the technician's after-the-fact announcement that he suffered from bipolar disorder).

Minor Infractions May Have to Be Excused

Although courts generally are hesitant to second-guess employers' administration of their personnel policies, they may entertain ADA claims brought by disabled employees who were dismissed if it appears that termination was an unduly harsh penalty under the circumstances. For example, in Walsted v. Woodbury County, Iowa, 113 F. Supp. 2d 1318 (N.D. Iowa 2000), the employer fired a mildly retarded employee who admitted stealing items from the workplace on two occasions. The district court denied the employer's motion for summary judgment, concluding that an issue of fact existed whether, with further training and other reasonable accommodations, the employee could refrain from further transgressions. The EEOC has opined that, in the case of minor infractions, employers, upon request, must “make reasonable accommodation to enable an otherwise qualified employee with a disability to meet [the company's] conduct standard[s] in the future, barring undue hardship.” See EEOC Enforcement Guidance, Q&A No. 36. Consistent with this guidance, the court in Leschinskey refused to dismiss the ADA claim of an employee who requested an accommodation for medical conditions that caused him to fall asleep at work, resulting in a violation of the employer's personnel rules. See 2011 WL 5029813, at *2-3. And in a case arising under Title III of the ADA, involving a medical student with an anger management problem supposedly caused by Attention-Deficit Hyperactivity Disorder, the Fourth Circuit observed that “[a] school, if informed that a student has a disability with behavioral manifestations, may be obligated to make accommodations to help the student avoid engaging in misconduct.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 465 (4th Cir. 2012).

The Ninth and Tenth Circuits' More Lenient Approach

Employers located within the territorial limits of the Ninth and Tenth Circuits must tread more cautiously before disciplining disabled employees for misconduct. Those courts have rejected the “disability v. disability-caused conduct dichotomy,” except with respect to misconduct related to an employee's use of alcohol or illegal drugs. Den Hartog v. Wasatch Acad., 129 F.3d 1076 (10th Cir. 1997); accord Humphrey v. Mem'l Hosps. Assoc., 239 F.3d 1128, 1139-40 (9th Cir. 2001) (“For purposes of the ADA, with a few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.”) (Internal footnote omitted.) As the Tenth Circuit observed, the ADA expressly permits employers to hold alcoholics and illegal drug users to the same standards of conduct that are applied to non-disabled employees, and it also relieves them of any duty to offer accommodations that would be unduly burdensome or that would benefit workers who pose a “direct threat” in the workplace. See Den Hartog, 129 F.3d. at 1087. The “necessary corollary” of these provisions, however, “is that there must be certain levels of disability-caused conduct that have to be tolerated or accommodated.” Id. To minimize the risk of liability under the ADA, employers in the Ninth and Tenth Circuits should evaluate whether an accommodation is possible before terminating an employee for misconduct related to a disability. If the misconduct renders the employee unable to perform essential functions of the job even with an accommodation, or if the proposed accommodations would be unduly burdensome, a reviewing court likely would conclude that the employer was justified in dismissing the employee. For example, in a decision handed down in April 2012, the Ninth Circuit concluded that regular attendance was an essential job requirement for nurses working in a neonatal intensive care unit and, on that basis, it upheld the termination of a nurse whose fibromyalgia made it impossible for her to show up for work on a consistent basis. See Samper v. Providence St. Vincent Med. Ctr., No. 10-35811 (9th Cir. Apr. 11, 2012). By contrast, if the misconduct is fairly trivial and the employee is able to perform the essential functions of his position without materially disrupting the employer's operations, an employer in the Ninth or Tenth Circuits may be obliged to tolerate the infractions.

Conclusion

Employers generally endeavor to apply their personnel rules in a consistent manner and, of course, federal, state and local anti-discrimination statutes preclude disparate enforcement of such rules based on an employee's membership in a protected class. Employees who violate workplace rules because of drug abuse, alcoholism, and other conditions exempted from the ADA's definition of “disability” can expect to suffer the same penalties meted out to employees who do not suffer from those conditions.

By contrast, courts may expect employers to consider possible accommodations for employees with recognized disabilities who, despite their violation of a workplace rule, may be able to perform the essential functions of their positions (and avoid future infractions) with an accommodation. Employers in the Ninth and Tenth Circuits generally will be held to a higher standard; they will be expected to offer reasonable accommodations to disabled employees and to tolerate some level of aberrant behavior on the part of disabled employees who otherwise are able to perform the essential functions of their positions.

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.

Part One of this article in last month's issue discussed the definition of disability, disabled-employee miconduct, and discipline. Part Two herein continues the discussion.

Non-Violent Misconduct Related to a Recognized Disability

Most employers have adopted employee handbooks to encourage conduct that furthers the company's objectives while prohibiting behavior that may jeopardize its interests or the health and safety of its workforce. Even in smaller firms where employment policies may be unwritten, misconduct unquestionably is a legitimate basis for discipline, including termination. When confronted with the possibility of termination or other disciplinary action, an employee may attribute his misconduct to a physical or psychiatric disability.

For example, a grocery store employee who was disciplined for uttering racial epithets argued that his inflammatory remarks were an uncontrollable symptom of Tourette's Syndrome, for which the store was obligated to make reasonable accommodations. See Ray v. The Kroger Co. , 264 F. Supp. 2d 1221 (S.D. Ga.2003), aff'd 90 Fed. Appx. 384 (11th Cir. 2003). A university professor argued that his non-collegial and disruptive behavior was caused by obsessive compulsive disorder, and that his termination therefore was in violation of the ADA. See Newberry v. E. Tex. State Univ. , 161 F.3d 276 (5th Cir. 1998). And employees caught sleeping on the job have attributed their drowsiness to a variety of medical causes, including insomnia, sleep apnea, and medications prescribed for back injuries. See, e.g., Hill v. Kan. City Area Transp. Auth. , 181 F.3d 891 (8th Cir. 1999); Leschinskey v. Rectors & Visitors of Radford Univ., No. 7:11cv189, 2011 WL 5029813 (W.D. Va. Oct. 24, 2011). Whether an employer is privileged to discipline employees for conduct that may be related to a disability depends on the jurisdiction in which the employer is located, whether the employer is aware of the asserted disability and the employee's need for an accommodation prior to imposing discipline, and the extent to which the disability and associated misconduct can reasonably be accommodated.

EEOC: Misconduct Related To a Disability Can Be Disciplined

As noted in Part One of this article, the ADA bars employers from discriminating against a qualified person with a disability with respect to the terms and conditions of employment. In simple terms, one cannot terminate an employee merely because he or she has a disability. If an employee's disability causes him to violate a workplace rule and the company terminates his employment, was the employee terminated because of his disability, or because of the violation of the employer's rules? The statute does not answer this question directly; the EEOC, for its part, has opined that “an employer is not required to excuse past misconduct even if it is the result of the individual's disability.” See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (“EEOC Enforcement Guidance”), Q&A No. 36 (Oct. 17, 2002). Most courts have agreed with the EEOC's approach. The Fourth Circuit, for example, has held that “misconduct ' even misconduct related to a disability ' is not itself a disability,” and may be grounds for discipline. Martinson v. Kinney Shoe Corp. , 104 F.3d 683, 686 n.3 (4th Cir. 1997). Stated another way, the ADA “does not excuse workplace misconduct [that] is related to a disability,” and therefore, “on-the-job misconduct and poor work performance always constitute legitimate and nondiscriminatory reasons for terminating employment, even where the misconduct is caused by an undivulged psychiatric condition.” Canales-Jacobs v. N.Y. State Office of Court Admin. , 640 F. Supp. 2d 482, 500 (S.D.N.Y. 2009).

EEOC Does Not Require That Past Disciplinary Actions Be Rescinded

Courts following the EEOC approach generally will not require employers to rescind disciplinary actions that already have been taken against a disabled employee who violated the employer's policies. Thus, an employee who has received a written warning for violating a workplace rule will not be entitled to have it expunged from his file, and a worker who has been terminated for misconduct will not be entitled to reinstatement. This rule is applied inflexibly in instances where the employer was not aware of the employee's disability at the time of the disciplinary action. See, e.g., Canales-Jacobs, 640 F. Supp. 2d at 487-88 (holding that a court clerk who suffered from clinical depression was not entitled to a lesser sanction than dismissal for yelling at a judge, throwing court papers, and subjecting the public to a “barrage of obscenity”); Calandriello v. Tenn. Processing Ctr., LLC, No. 3:08-1099, 2009 WL 5170193 (M.D. Tenn. Dec. 15, 2009) (holding that an employer was entitled to terminate a technician who manifested a preoccupation with serial killers and weapons, notwithstanding the technician's after-the-fact announcement that he suffered from bipolar disorder).

Minor Infractions May Have to Be Excused

Although courts generally are hesitant to second-guess employers' administration of their personnel policies, they may entertain ADA claims brought by disabled employees who were dismissed if it appears that termination was an unduly harsh penalty under the circumstances. For example, in Walsted v. Woodbury County, Iowa , 113 F. Supp. 2d 1318 (N.D. Iowa 2000), the employer fired a mildly retarded employee who admitted stealing items from the workplace on two occasions. The district court denied the employer's motion for summary judgment, concluding that an issue of fact existed whether, with further training and other reasonable accommodations, the employee could refrain from further transgressions. The EEOC has opined that, in the case of minor infractions, employers, upon request, must “make reasonable accommodation to enable an otherwise qualified employee with a disability to meet [the company's] conduct standard[s] in the future, barring undue hardship.” See EEOC Enforcement Guidance, Q&A No. 36. Consistent with this guidance, the court in Leschinskey refused to dismiss the ADA claim of an employee who requested an accommodation for medical conditions that caused him to fall asleep at work, resulting in a violation of the employer's personnel rules. See 2011 WL 5029813, at *2-3. And in a case arising under Title III of the ADA, involving a medical student with an anger management problem supposedly caused by Attention-Deficit Hyperactivity Disorder, the Fourth Circuit observed that “[a] school, if informed that a student has a disability with behavioral manifestations, may be obligated to make accommodations to help the student avoid engaging in misconduct.” Halpern v. Wake Forest Univ. Health Scis. , 669 F.3d 454, 465 (4th Cir. 2012).

The Ninth and Tenth Circuits' More Lenient Approach

Employers located within the territorial limits of the Ninth and Tenth Circuits must tread more cautiously before disciplining disabled employees for misconduct. Those courts have rejected the “disability v. disability-caused conduct dichotomy,” except with respect to misconduct related to an employee's use of alcohol or illegal drugs. Den Hartog v. Wasatch Acad. , 129 F.3d 1076 (10th Cir. 1997); accord Humphrey v. Mem'l Hosps. Assoc. , 239 F.3d 1128, 1139-40 (9th Cir. 2001) (“For purposes of the ADA, with a few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.”) (Internal footnote omitted.) As the Tenth Circuit observed, the ADA expressly permits employers to hold alcoholics and illegal drug users to the same standards of conduct that are applied to non-disabled employees, and it also relieves them of any duty to offer accommodations that would be unduly burdensome or that would benefit workers who pose a “direct threat” in the workplace. See Den Hartog, 129 F.3d. at 1087. The “necessary corollary” of these provisions, however, “is that there must be certain levels of disability-caused conduct that have to be tolerated or accommodated.” Id. To minimize the risk of liability under the ADA, employers in the Ninth and Tenth Circuits should evaluate whether an accommodation is possible before terminating an employee for misconduct related to a disability. If the misconduct renders the employee unable to perform essential functions of the job even with an accommodation, or if the proposed accommodations would be unduly burdensome, a reviewing court likely would conclude that the employer was justified in dismissing the employee. For example, in a decision handed down in April 2012, the Ninth Circuit concluded that regular attendance was an essential job requirement for nurses working in a neonatal intensive care unit and, on that basis, it upheld the termination of a nurse whose fibromyalgia made it impossible for her to show up for work on a consistent basis. See Samper v. Providence St. Vincent Med. Ctr., No. 10-35811 (9th Cir. Apr. 11, 2012). By contrast, if the misconduct is fairly trivial and the employee is able to perform the essential functions of his position without materially disrupting the employer's operations, an employer in the Ninth or Tenth Circuits may be obliged to tolerate the infractions.

Conclusion

Employers generally endeavor to apply their personnel rules in a consistent manner and, of course, federal, state and local anti-discrimination statutes preclude disparate enforcement of such rules based on an employee's membership in a protected class. Employees who violate workplace rules because of drug abuse, alcoholism, and other conditions exempted from the ADA's definition of “disability” can expect to suffer the same penalties meted out to employees who do not suffer from those conditions.

By contrast, courts may expect employers to consider possible accommodations for employees with recognized disabilities who, despite their violation of a workplace rule, may be able to perform the essential functions of their positions (and avoid future infractions) with an accommodation. Employers in the Ninth and Tenth Circuits generally will be held to a higher standard; they will be expected to offer reasonable accommodations to disabled employees and to tolerate some level of aberrant behavior on the part of disabled employees who otherwise are able to perform the essential functions of their positions.

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.