March 11, 2014
Gina L. Comeau
Assistant Attorney General
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What if an employee’s disability seems to
contribute to his performance or conduct
problems?
What if an employee raises disability for the
first time during disciplinary action?
What if an employee gets a low performance
rating and responds by saying he has a
disability, can we still give him that rating?
Does the employer have to rescind discipline
as an accommodation?
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Rule must be job-related & consistent
with business necessity
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Rule must be applied equally to all
employees
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Not protected by ADA for violating rule
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3 Types of Rules:
◦ Qualification Standards
◦ Performance Standards
◦ Conduct Standards
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Qualification Standards include:
◦ Possessing specific training, licenses
or certificates;
◦ Possessing certain physical or
mental abilities
Show standard is job-related &
consistent with business necessity
Consider reasonable accommodation
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Performance Standards include:
◦ Set quantity per week or month
◦ Pre-determined timeframe for output
◦ Qualitative requirements
◦ Other production standards
Hypo: Employee can’t meet production
standards due to a disability, does
employer have to change production
standard? No.
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Tips on how to proceed:
◦ Review evaluation criteria
◦ Is criteria equally applied?
◦ Enforce performance standard
◦ Proceed with discipline
◦ Set clear guidance & expectations re: quantity,
quality, and timeframes
◦ Consider accommodation
 What if an employee gets a low
performance rating and responds by
saying he has a disability, can we still
give him that rating? Yes, but …
 Discuss why he believes his disability is
impacting the rating and accommodate if
necessary.
 Can’t require an employee to perform
job in same manner!
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Conduct standards include:
◦ Prohibitions on violence or threats of
◦ Stealing or destruction of property
◦ Insubordination
◦ Prohibiting sending of inappropriate
email
◦ Prohibit inappropriate behavior –
yelling, cursing, shoving, obscene
gestures
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Cases where employee has inappropriate
behavior:
Must show conduct standard:
◦ Job related & consistent with business
necessity
◦ Other employees held to same standard
5 factors considered:
◦ Manifestation of symptoms in workplace
◦ Frequency of occurrence
◦ Nature of job
◦ Conduct at issue
◦ Work environment
Hypo: Steve, a new bank teller, 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. Customers also hear Steve’s vocal tics, and several
of them speak to Donna, the bank manager. Donna discusses the issue with Steve and
he explains that he has Tourette Syndrome, a neurological disorder characterized by
involuntary, rapid, sudden movements or vocalizations that occur repeatedly. Steve
explains that while he could control the tics sufficiently during the job interview, he
cannot control them throughout the work day; nor can he modulate his voice to speak
more softly when these tics occur. Donna lets Steve continue working for another two
weeks, but she receives more complaints from customers and other tellers who,
working in close proximity to Steve, continue to have difficulty processing
transactions. Although Steve is able to perform his basic bank teller accounting duties,
Donna terminates Steve 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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What should you do if employee mentions he
has a disability for the first time during
discipline for poor conduct?
Employer may still discipline, but must
accommodate
What if you are contemplating termination, do
you have to apply a lower level of discipline
and accommodate? It depends
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Tardiness Rules◦ Zero tolerance for late arrival?
◦ Generally require employees arrive at scheduled
start time.
◦ Call in procedures vary from unit to unit?
◦ Consistent enforcement of rule?
Hypo: Employee gets cancer treatments in
morning, but arrives late to work.
Employer does not have to:
◦ Tolerate chronic lateness;
◦ Grant open ended schedules;
◦ Accept irregular attendance;
 Hold accountable, but attempt to
accommodate employee so he is not tardy.
 Document how chronic unpredictable
lateness is putting strain on operations.
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Hypo: An employee has received two written
reprimands and a prior suspension for chronic
absenteeism. During a recent pre-disciplinary
meeting for a separate tardiness offense she reveals
that the medication she is taking for her disability is
causing her to be late. She explains that she was
embarrassed to raise this issue in early disciplinary
actions for fear of being treated differently. The predisciplinary meeting is concluded and you know that
the appointing authority wants to terminate her. What
do you do?
Does employer have to rescind the prior disciplinary
action as an accommodation?
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ADA nor WLAD require an employer to rescind
discipline (including termination) that is warranted
by poor performance.
“Accommodation does not include waiving
warranted discipline even if disability played a role
in causing the conduct.”
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EEOC & Courts agree can hold all
employees – those with or without
disabilities – to comply with workplace
safety rules.
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Humphrey v. Memorial Hospital, 239 F.2d
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Raytheon Co. v. Hernandez, 540 U.S. 44
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Gambini v. Total Renal Care, 486 F.3d 1087
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Lopez v. Pacific Maritime Association, 657
1128 (9th Cir. 2001).
(2003)
(9th Cir. 2007).
F3d 762 (9th Cir. 2011).
Disability affects performance of job
even with accommodation;
 Established rule is enforceable – it is
job related and consistent with
business necessity!
 Direct threat defense (last resort).
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