What can you do when an employee says that the discipline you are about to impose is the result of his or her disability? It’s a delicate spot, but you can manage it, says attorney Jathan Janove.
First of all, says Janove, the Equal Employment Opportunity Commission (EEOC) allows employees to be disciplined for violating a workplace conduct standard, even if resulting from a disability, provided:
(1) The standard is job-related for position in question; and
(2) Consistent with business necessity.
Janove is a partner in the Portland, Oregon, office of Ater Wynne LLP. His suggestions came at a SHRM conference.
Case Studies Clarify Rules
Janove points to a few cases that clarify the rules. Consider Hamilton v. Southwestern Bell Telephone, he says. The facts of the case were that 4 months before he was discharged, plaintiff Hamilton had rescued a drowning woman. He suffered from post-traumatic stress. When a female co-worker came back after lunch and Hamilton thought she had been gone too long, he started yelling at her.
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She said, “Don’t talk to me that way—I’m entitled to be treated with respect.” Hamilton slapped her hand away, started swearing, got closer and was threatening.
He later said that the reason he behaved that way is that he had a disability. “I was entitled to an accommodation,” he said, “but you never gave me a chance.”
The court didn’t buy it. The behavior was unacceptable. Even if this was the result of a disability, said the court, the company shouldn’t have to tolerate his behavior or reactions to a co-worker. The court noted that Hamilton was terminated for “failure to recognize the acceptable limits of behavior in the workplace.”
The key facts in the case, says Janove, are the hand slap and the company’s anti-violence policy, which the court heavily emphasized. (In other cases, notes Janove, courts have noticed when there is no policy.)
On the Other Hand …
On the other hand, says Janove, take a look at another recent case, Gambini v. Total Renal Care, Inc. This case held that when an employee demonstrates a causal link between the unacceptable behavior and the disability, the jury must be instructed that it may find that the employee was terminated on the impermissible basis of disability.
In the case, Gambini blew up in a meeting, used blue language, and was terminated. The jury held for the employer, but the 9th circuit overturned the verdict because the jury had not been given the causal link instructions mentioned above.
There were a number of special factors at work, in this case, Janove says. First, Gambini was a sympathetic plaintiff. She had gone to her co-workers and explained her situation. She had a disability, she was trying different doses of medications, she was likely to have outbursts, and she asked for their understanding.
That was working out until a new supervisor whom she did not know, called her to a meeting with her former supervisor, and another supervisor. She was already nervous when the new supervisor presented her with a written performance plan that stated “your attitude in general and disposition is no longer acceptable in our department.” Up to this point there had been no discipline—no correction, no indications of problems. Crying, upset, melting down, she threw the document down and “lost it.”
Because she was thought to be suicidal, she was hospitalized, and the company granted provisional FMLA leave.
HR became involved, investigated, and got comments from other employees, who said that she made them nervous. So the decision was made to fire her. The company called her on her cell and fired her while she was out on FMLA leave trying to recover from suicidal impulses. Not the best HR work, says Janove.
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Temper, Temper
Here’s a case with an old-timer who was picking on people, losing her temper and exercising her foul tongue. Most of her victims were younger women. For years the behavior had been tolerated but then the situation changed—a new younger female supervisor showed up. The first time the older woman blows up, the new supervisor was all over it.
The woman quieted down, but, a short while later, there was a little eruption (not “f” level—”damn” level), and the new supervisor says gotcha. “I warned you, told you you’d be fired, you did it again, you’re out.”
The woman sued and the jury found in her favor. The jurors said later that, yes, the employee was obnoxious, but so was the company’s lawyer, and so was the firing supervisor who had not bothered to go to HR, hadn’t bothered to look at the procedures manual, and thus hadn’t followed it, and had fired the woman on her 63rd birthday.
Ooops, says Janove.
Tomorrow we’ll look at how, when the decision to impose discipline has been made, to best go about doing it.