Disability Related Conduct and the ADA1
Under the majority approach, an employer may discipline or terminate an employee for
violating a workplace conduct standard that is job related and consistent with business necessity,
even if the misconduct was the result of the employee’s disability.2 Some courts even go as far as
saying plaintiffs cannot hide behind the ADA and avoid accountability for their actions. 3 The
Seventh Circuit went one step farther in addressing “controllable disabilities,” holding that an
employee who knows he or she is afflicted with a controllable disability needs no
accommodation from employer, and fails to meet employer’s legitimate job expectations due to
his or her failure to control the disability, cannot state a cause of action under the ADA.4
The minority approach (9th, and 10th Circuits) does not accept such clear distinctions
between a disability and disability related conduct. The Tenth Circuit rejected a bright-line
distinction between disability and conduct, stating that outside of the context of alcoholism and
drug addiction, employment decisions based on disability-caused misconduct violate the ADA
unless the conduct standard at issue is job related and consistent with business necessity, or the
employee poses a direct threat to the health and safety of others in the workplace.5 The Ninth
Circuit similarly held that conduct resulting from a disability is part of the disability, and not a
separate basis for termination, does not grant an employee absolute protection from adverse
employment actions based on disability-related conduct because employers may show business
necessity or direct threat to justify their disciplinary actions.6
The EEOC allows an employer to discipline an employee for violating a workplace
conduct standard if the misconduct resulted from a disability, provided that the workplace
conduct standard is job-related for the position in question and is consistent with business
necessity.7 For example, nothing in the ADA prevents an employer from maintaining a
workplace free of violence or threats of violence, or from disciplining an employee who steals or
destroys property. However, imposing discipline for conduct not job-related may violate the
ADA.
The following chart references several cases and EEOC examples highlighting these
varying approaches.
1
This overview is provided for informational purposes only and should not be relied on as legal advice. Nothing
herein constitutes the establishment of an attorney-client relationship between you and any attorney involved in the
drafting of material included in this overview. We make no claims, promises, or guarantees about the accuracy,
completeness, or adequacy of any information contained herein.
2
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.
3
Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1052 (5th Cir. 1998).
4
Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995) (holding diabetic cop who drove
erratically due to severe diabetic reaction was not covered under the ADA).
5
Kelly Cahill Timmons, Accommodating Misconduct Under the Americans with Disabilities Act, 57 Fla. L. Rev.
187, 220 (2005) ; Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1086 (10th Cir. 1997); see also Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1134 (10th Cir. 2003).
6
Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1090 (9th Cir. 2007).
7
See EEOC Guidelines: Applying Performance And Conduct Standards To Employees With Disabilities, available
at: www.eeoc.gov/facts/performance-conduct.html.
2
EEOC Example:
EEOC Example:
Majority Approach:
Calef v. Gillette Co.,
322 F.3d 75 (1st Cir.
2003).
Jones v. Am. Postal
Workers Union, 192
F.3d 417 (4th Cir.
1999).
Disability
Psychiatric
disability
Conduct
Employee is
frequently observed
talking to himself,
though he does not
speak loudly, make
threats, or use
inappropriate language.
However, some
coworkers who are
uncomfortable around
him complain to the
division manager about
his behavior. His
manager transfers him to
the night shift where his
behavior will not be
disruptive.
A warehouse
worker has a
psychiatric
disability.
Over the course of
several weeks, he has
come to work appearing
increasingly disheveled.
His clothes are ill-fitting
and often have tears in
them. He also has
become increasingly
anti-social.
ADHD
Verbal and physical
threats and altercations
with co-workers.
PTSD.
Holding
It would violate the
ADA to transfer the
employee
to the night shift based
on this conduct. While it
is possible that the
symptoms or
manifestations of an
employee’s disability
could, in some
instances, disrupt the
ability of others to do
their jobs that is not the
case here. Employees
have not complained
that his conduct is
preventing them from
doing their jobs. They
simply do not like being
around someone who
talks to himself.
Termination due to these
facts would violate the
ADA, as dress codes
and co-worker courtesy
are not essential job
functions to this
position.
The ADA does not
require that employer
retain an employee
whose disability causes
unacceptable behavior
that threatens the safety
of others.
Plaintiff postal worker
Postal Service was
with PTSD threatened
entitled to discharge
the life of his supervisor. employee after he
threated the life of his
supervisor, even if this
misconduct was caused
3
by his disability.
Gasper v. Perry, No. Head injury.
Problems with shortAlthough the employee
97-1542, 1998 U.S.
term memory, causing
asserted that these
App. LEXIS 14933
misinterpretation and
instances of misconduct
(4th Cir. July 2,
confusion, and problems were caused by his
1998).
in social functioning.
disability, there is no
evidence that the
employer terminated the
employee’s employment
because of his disability,
rather than because of
the misconduct.
Hamilton v. Sw. Bell
PTSD.
Angrily confronted a co- ADA does not insulate
Tel. Co., 136 F.3d
worker with profanity.
emotional or violent
1047 (5th Cir. 1998)
outbursts blamed on an
impairment.
Bobo v. Prof’l Bldg.
Anxiety and panic ER terminated
Plaintiff provided
Servs., No.
disorders with
employment because
sufficient evidence that
3:08CV72, 2009 U.S. agoraphobia.
Plaintiff would not
he was terminated due
Dist. LEXIS 114119
follow instructions
to his disability to
(December 8, 2009,
involving avoiding
withstand a motion for
N.D. Miss.).
contact with visitors and summary judgment.
staff at the welcome
center where he worked.
Macy v. Hopkins Co. Head injury.
Outburst towards
ADA permits an
Sch. Bd. of Educ., 484
students using
employer to fire an
F.3d 357 (6th Cir.
inappropriate and
employee for conduct
2007)
derogatory statements
that results from a
and death threats.
disability if that conduct
disqualifies the
employee from his or
her job.
Lewis v. Humboldt
Had a disability
Nurse terminated for an Employee was not
Acquisition Corp.,
that made it
outburst at work, in
required to show that
681 F.3d 312 (6th
difficult for her to which she allegedly
her disability was the
Cir. 2012).
walk,
yelled, used profanity
sole reason for her
occasionally
and criticized her
termination, rather
needed to use a
supervisors.
employee was required
wheelchair.
to show that her
disability was a but-for
cause of the employer’s
adverse action.
Bodenstab v. County
Anesthesiologist
Threatened to kill
Decision to terminate
of Cook, 569 F.3d
with a psychiatric supervisors and coanesthesiologist because
651 (7th Cir. 2009)
disability.
workers.
he threatened to kill his
co-workers was not
4
Ray v. Kroger Co.,
264 F. Supp. 2d 1221,
1228-29 (S.D. Ga.
2003), aff’d, 90 Fed.
Appx. 384 (11th Cir.
2003).
Grocery store
clerk with
Tourette’s
Syndrome
Lanci v. Arthur
Anderson, LLP, 96
Civ. 4009 (WK),
2000 U.S. Dist.
LEXIS 3954 (March
29, 2000, S.D. N.Y.).
Tourette’s
Syndrome, and
obsessive
compulsive
disorder.
Carrozza v. Howard
County, 847 F. Supp.
365, 367-68 (D. Md.
1994).
Bipolar disorder
Minority Approach:
Gambini v. Total
Renal Care, Inc.,
d/b/a
DaVita, Inc., 486
F.3d 1087, 1095 (9th
Cir. 2007).
Den Hartog v.
Wasatach Academy,
129 F.3d 1076 (10th
Cir. 1997).
pretext for disability
discrimination.
Blurting out vulgar
Plaintiff failed to show
language and racial
that he was discharged
slurs.
from his position
because of his disability,
in that he was not
qualified for a grocery
clerk position, since he
could not interact with
customers without
offending them.
Difficulty multitasking, A genuine factual
lost composure when
dispute existed on
under pressure,
whether ER terminated
difficulty concentrating, based on disability,
side effects from
therefore summary
medication (being jittery judgment denied.
and very drowsy).
A clerk-typist
The ADA does not bar
terminated for
termination where there
insubordinate behavior
is misconduct, even if
and outbursts directed
caused by a qualifying
towards
disability.
her supervisors.
Bipolar disorder.
Mood swings,
irritability, anger, and
lack of concentration.
Employee received poor
performance review,
threw it across her
supervisor’s desk,
used profanity, slammed
the door as she left the
meeting, and began
kicking and throwing
things at her cubicle.
Plaintiff’s adult
son had bipolar
disorder.
Adult son attacked and
threatened several
members of the
community, including
Conduct resulting from
a disability is part of
the disability, and not a
separate basis for
termination, and does
not grant an employee
absolute protection from
adverse employment
actions based on
disability-related
conduct because
employers may show
business necessity
or direct threat to justify
their disciplinary
actions.
As a general rule, an
employer may not hold
a disabled employee to
precisely the same
5
Brown v. City of
Salem, 19 A.D. Cases
29 (D. Ore. 2007)
911 dispatcher
with sleep apnea.
the headmaster’s two
children.
standards of conduct as
a non-disabled
employee unless such
standards are job-related
and consistent with
business necessity.
Terminated after falling
asleep at work on
numerous occasions.
Termination violated the
ADA where the
employee’s falling
asleep was caused by his
disability and that
conduct resulting from
the disability is
considered to be a part
of the disability and
termination based on
that conduct is unlawful.
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