Diversity Insight

Untouchable? Disciplining employees for disability-caused misconduct

by Nikki Hall and Eugene Park

HR professionals regularly implement employee discipline and are adept at navigating the waters of reasonable accommodations for disabled employees. Mingling those two issues, however, can sometimes pull an employer in opposite directions when it’s responding to, for example, a chronically tardy employee suffering debilitating side effects from medication or an employee whose rude or even threatening behavior is due to a psychiatric disability. Adding to this conundrum is the differing and evolving judicial and administrative guidance.  YouAreLate

An inconsistent legal landscape

Throughout the early 2000s, the U.S. 9th Circuit Court of Appeal, which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, ruled that disciplinary action targeting disability-caused conduct could be construed as being directed toward the disability itself and therefore implicate disability discrimination laws. In three cases, the federal court overturned the lower court and either allowed the trial to proceed or ordered a new trial on Americans with Disabilities Act (ADA) disability discrimination claims. The cases were filed by:

  1. A medical transcriptionist terminated for tardiness and absenteeism due to her obsessive-compulsive disorder (Humphrey v. Memorial Hospitals Association);
  2. A heavy-equipment operator terminated for suffering an epileptic seizure while driving a county vehicle (Dark v. Curry County); and
  3. A clerk with bipolar disorder terminated for outbursts that frightened coworkers (Gambini v. Total Renal Care, Inc.).

In each case, the court pronounced the rule that “conduct resulting from a disability is considered to be part of the disability” and therefore can’t be considered as a separate basis for discipline.

In Wills v. Superior Court, the California Court of Appeal reached a different result in 2011. The court upheld the termination of a court clerk who yelled and swore at coworkers, told them she would add them to her Kill Bill hit list, and sent numerous threatening e-mails. The employee challenged her termination under California’s Fair Employment and Housing Act (FEHA), arguing that her misconduct occurred during a severe manic episode caused by her bipolar disorder.

The court questioned whether the 9th Circuit’s decisions blurring the lines between “conduct” and “disability” were as unassailable as they first appeared, and it noted that all three decisions relied on an overly simplistic ― and in some cases nonexistent—analysis. Therefore, the court ruled that when a workplace violence policy is violated, the employer may distinguish between disability-caused misconduct and the disability itself. The court didn’t answer the question of whether the same rule would apply for misconduct not in violation of a workplace violence policy.

Also in 2011, the Equal Employment Opportunity Commission (EEOC) weighed in with its own interpretation of the ADA and issued guidance stating that an employee may be disciplined for disability-caused misconduct if the employer was previously unaware of the disability. The EEOC also affirmed that under the ADA, employers may discipline employees they know are disabled for violations of workplace standards that are job-related, are necessary for the business, and are applied equally to all employees.

Bottom line

While the courts have yet to offer comprehensive guidance, employers can be reasonably confident in observing the following principles:

  • Unless you know or should know about an employee’s disability, you don’t have to treat the employee any differently with respect to discipline. You should, however, document when you first learned of the disability and, in some instances, request an explanation from the employee if you reasonably suspect performance issues are caused by a disability.
  • You should engage in an interactive process with all employees, including disciplined employees, to identify reasonable accommodations that could prevent future misconduct. This could include, for example, offering telecommuting or modified work arrangements available to other employees.
  • If you later become aware that misconduct was caused by a disability, you don’t have to retract an otherwise proper disciplinary action. You still may move forward with discipline if the misconduct violates a job- related rule that applies to all employees, such as requirements that employees deal appropriately with customers.
  • In any event, you may discipline employees for violations of ADA- compliant rules against alcohol and substance abuse and other major misconduct.

Nikki Hall is a partner with Renne Sloan Holtzman Sakai LLP, practicing in the firm’s San Francisco office. She may be contacted at nhall@publiclawgroup.com.

Eugene Park is an associate with Renne Sloan Holtzman Sakai LLP, practicing in the firm’s San Francisco office. He may be contacted at epark@publiclawgroup.com.