“ADA-Protected Misconduct? Is it
misconduct, or is it a disability, or
both?”
Presented by:
CarolAnn McConville, Lauren Blevins, and Bill Berger
Labor & Employment Law Section of the Colorado Bar
Association
Thursday, March 19, 2015
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March 18, 2015
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CarolAnn McConville is Associate General Counsel at
CenturyLink. A graduate of Cornell Law School, CarolAnn was
previously with Mercury Companies, Inc., and Merrill Lynch.
CarolAnn’s practice regularly involves employment issues.
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•
Lauren Blevins is an associate at Brownstein Hyatt Farber
Schreck, LLP and works in the firm’s employment group.
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•
Bill C. Berger is a shareholder at Brownstein Hyatt Farber
Schreck, LLP. Bill’s practice includes management-side
employment, labor and OSHA.
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“My disability made me do it!”
•
James J. McDonald, Accommodation of Disability-Related
Misconduct Under the ADA: When Is It Required?, American Bar
Association Section of Labor and Employment Law National
Conference on Equal Opportunity Law, March 27, 2010.
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Example
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Anesthesiologist
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Suffers from sleep apnea
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Which causes him to fall asleep during surgical procedures
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Example
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Police officer
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Suffers from diabetes
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Experienced a diabetic reaction which resulted in disorientation and
memory loss.
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This caused him to erratically drive his squad car at high speed through
residential areas some forty miles outside his jurisdiction.
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More complicated examples include
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Mental disorders
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Bipolar Disorder
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Depression
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Obsessive-Compulsive Disorder
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Narcolepsy and sleep disorders
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Post-Traumatic Stress Disorder
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Anxiety Disorders
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Note
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Alcoholism
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Illegal drug addiction
Both are beyond the scope of this presentation.
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How do courts analyze these issues?
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Perhaps surprisingly, there is significant disagreement about the
blackletter law.
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Handout
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Disability Related Conduct and the ADA.
•
In putting this together, we summarized the various approaches
and broke down into a chart different case holdings on this
issue. We hope this is a handy reference tool.
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EEOC Approach
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An employer may discipline an employee for violating a
workplace conduct standard even when the misconduct is
related to a disability so long as the conduct standard is
uniformly applied, job-related for the position, and is consistent
with a business necessity.
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9th and 10th Circuits
“1. Is the misconduct the result of illegal drug use or alcohol
abuse?
2. Is the misconduct ‘egregious and criminal’?
3. Does the misconduct pose a ‘direct threat’ to the health or
safety of others?
4. Will it be an undue hardship for the employer to accommodate
the misconduct?”
Quoting McDonald, supra.
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1st, 4th, 5th, 6th, 7th, and 11th Circuits
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In a nutshell, employees “cannot hide behind the ADA and
avoid accountability for [their] actions.” Hamilton v. Sw. Bell Tel.
Co., 136 F.3d 1047, 1052 (5th Cir. 1998).
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Compare 4th Circuit: “The law is well settled that the ADA is not
violated when an employer discharges an individual based upon
the employee’s misconduct, even if the misconduct is related to
a disability.” Jones v. Am. Postal Workers Union, 192 F.3d 417,
429 (4th Cir. 1999).
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Versus the 9th Circuit: “Conduct resulting from a disability is part
of the disability, and not a separate basis for termination.”
Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1090 (9th Cir.
2007) (quoting Humphrey v. Memorial Hospitals Ass’n, 239 F.3d
1128, 1139-40 (9th Cir. 2001)).
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Not only different blackletter law, but
different conclusions on the facts.
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Consider plaintiffs who suffer from bipolar disorder
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Which causes them to engage in insubordinate behavior, improper
outbursts, etc.
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9th and 10th Circuits
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Husowitz v. Runyon, 942 F. Supp. 822, 826 (E.D.N.Y. 1996) (holding the
plaintiff’s misconduct was “the direct result of his mental disability,” the
court held that the plaintiff established that he was suspended because of
his disability).
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Gambini v. Total Renal Care, Inc., d/b/a DaVita, Inc., 486 F.3d 1087, 1095
(9th Cir. 2007) (holding conduct resulting from a disability is part of the
disability, and not a separate basis for termination).
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Den Hartog v. Wasatach Academy, 129 F.3d 1076 (10th Cir. 1997) (holding
that an employer may not hold a disabled employee to precisely the same
standards of conduct as a non-disabled employee unless such standards are
job-related and consistent with business necessity, affirming summary
judgment for employer on ADA claim).
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Versus
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Carrozza v. Howard County, 847 F. Supp. 365, 367-68 (D.
Md. 1994) (holding an employee with bipolar disorder and
insubordinate behavior could be terminated as the ADA
does not bar termination where there is misconduct, even
if caused by a qualifying disability, granting summary
judgment for employer).
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Examples
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Anesthesiologist
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Suffers from sleep apnea
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Which causes him to fall asleep during surgical procedures
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How would you hold?
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Actual case
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Brohm v. JH Props., Inc., 947 F. Supp. 299, 300-01 (W.D. Ky.
1996), aff’d, 149 F.3d 517 (6th Cir. 1998) (holding plaintiff fired
for his specific conduct, sleeping on the job, and not because of
a disability manifested by the sleeping).
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Police officer
•
Suffers from diabetes
•
Experienced a diabetic reaction which resulted in disorientation
and memory loss.
•
This caused him to erratically drive his squad car at high speed
through residential areas some forty miles outside his
jurisdiction.
•
How would you hold?
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Actual case
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Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7th Cir.
1995) (holding diabetic police officer who drove erratically due
to severe diabetic reaction was not covered under the ADA).
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Walks like a duck …
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A cartographer with frontal lobe dysfunction terminated for
bizarre behavior such as quacking at a coworker who was
carrying a duck head umbrella.
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How would you hold?
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Actual case
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Gasper v. Perry, No. 97-1542, 1998 U.S. App. LEXIS 14933 (4th
Cir. July 2, 1998) (Although the employee asserted that these
instances of misconduct were caused by his disability, there was
no evidence that the employer terminated the employee
because of his disability, rather than because of the
misconduct).
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Even the EEOC’s approach recognizes these
issues can be highly fact dependent.
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Steve, a new bank teller with Tourette Syndrome, barks,
shouts, utters nonsensical phrases, and makes other noises
that are so loud and frequent that they distract other tellers
and cause them to make errors in their work.
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Although Steve is able to perform his basic bank teller
accounting duties, he is terminated because his behavior is not
compatible with performing the essential function of serving
customers and his vocal tics are unduly disruptive to
coworkers.
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•
According to the EEOC:
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Steve’s termination is permissible because it is job-related
and consistent with business necessity.
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Even the EEOC’s approach recognizes these
issues can be highly fact dependent.
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Alternative #1:
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Steve has all the same severe tics, but he now works in a noisy
environment, does not come into contact with customers, and does not
work close to coworkers.
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The environment is so noisy that Steve’s vocalizations do not distract
other workers.
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According to the EEOC:
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Steve’s condition would not necessarily make him unqualified for a job
in this environment.
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Even the EEOC’s approach recognizes these
issues can be highly fact dependent.
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Alternative #2:
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Steve is back to working as a bank teller but his Tourette Syndrome now
causes only infrequent throat clearing and eye blinks.
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These behaviors are not disruptive to other tellers or incompatible with
serving customers.
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According to the EEOC:
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Firing Steve for these behaviors would violate the ADA.
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The EEOC contends it would not be job-related and consistent with
business necessity to require that Steve refrain from minor tics that do
not interfere with the ability of his coworkers to do their jobs or with
the delivery of appropriate customer service.
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Questions?
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Thank you!
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