Lex Mentis: My Disability Made Me Do It!

More and more employees are attempting to invoke the Americans with Disabilities Act (ADA) in an attempt to characterize workplace misconduct as disease. As a result, the notion that an employer may fire an employee for not showing up, or even for stealing, may soon become outdated.

The Traditional View

A guiding principle under the ADA historically has been that an employer may discipline an employee for misconduct, even if that misconduct results from a disability. For example, in EEOC v. Amego, Inc., 110 F.3d 135, 149 (1st Cir. 1997), a therapist who was responsible for administering prescription medication twice attempted to kill herself by overdosing on medication. Following her termination, the EEOC sued, alleging her firing violated the ADA. The employer argued that the employee disqualified herself for a position involving the handling of prescription medication by twice trying to kill herself via overdoses. The EEOC countered that the suicide attempts were simply manifestations of the employee's disability. The district court awarded summary judgment for the employer and the First Circuit affirmed. It observed: "To the extent that the EEOC is arguing that conduct connected to a disability always must be considered to be action 'because of' a disability, that is too broad a formulation."

"Please Accommodate My Thievery"

A federal court reached the opposite result in Walsted v. Woodbury County, 113 F.Supp.2d 1318 (N.D. Iowa 2000). That case involved a county custodian with a borderline retarded IQ who was criminally convicted of stealing the wallet of a co-worker. She was suspended without pay and counseled. Later, she was convicted of stealing DMV stickers from a county office. She was then fired and she sued under the ADA. The court inexplicably agreed with the plaintiff that the employer could have provided her with better training on why it is wrong to steal as opposed to firing her.

The Ninth Circuit reached a similar result in Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001). That case involved a medical transcriptionist with Obsessive-Compulsive Disorder whose obsessive rituals prevented her from arriving at work on time. Following discipline for her poor attendance, the plaintiff asked to be able to work from home. Her request was denied and when her poor attendance continued, she was terminated. The Ninth Circuit rejected the employer's argument that the plaintiff was not "qualified" under the ADA due to her inability to show up for work. It held that she could be accommodated by being allowed to work at home, finding that physical attendance could not be considered an essential function of the job. The Humphrey court then observed that the plaintiff's termination for absenteeism was unlawful if the absenteeism was caused by a disability. It explained: "For purposes of the ADA, with a few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination."

How to Avoid This Growing Trap

1. Include Intangible Elements In Job Descriptions

The mere fact that an employee has a "disability" within the meaning of the ADA does not automatically trigger ADA protection; he or she must be able to perform the essential functions of the job in question, with or without reasonable accommodation. Job descriptions are not required by the ADA, but the ADA provides that if an employer has prepared a written job description, it will constitute evidence of the essential functions of the job. Written job descriptions should specify intangible qualifications as well as manual requirements. Examples include:

  • The ability to appear for work on time;
  • The ability to follow directions from a supervisor;
  • The ability to interact well with co-workers;
  • The ability to understand and follow work rules and procedures;
  • The ability to accept constructive criticism; and
  • For managers and supervisors, the ability to lead and manage others.

2. Implement Workplace Conduct Policies.

Where employees engage in misconduct, employers should focus on the conduct of the disabled employee as opposed to the employee's condition. Some practical tools for the employer to use to regulate conduct include:

  • Policy Against Harassment and Personal Appearance and Behavior Policy.
  • Violence and Threats Policy prohibiting violent and threatening behavior as well as possession of weapons and fighting.
  • Substance Abuse Policy prohibiting employees from coming to work with unlawful substances "in their system," as opposed to "under the influence." The latter standard is subjective, whereas the former can be established to a near scientific certainty via testing.
  • A Code of Employee Conduct that prohibits discourtesy, insubordination, dishonesty, etc.

Violation of these policies by employees should be met with appropriate disciplinary action.

3. Limit Communications with EAPs

In many cases, it will not be apparent that a disruptive or poorly performing employee has a disability. Unless an employer knows that an employee is disabled, such an employer ordinarily cannot be held to have discriminated against the employee based on his or her disability. Employers that provide Employee Assistance Programs ("EAPs") for their employees therefore should ensure that the EAP does not report information to the employer concerning employees who utilize the EAP that might identify them as having a disability.

4. Use Fitness for Duty Examinations Sparingly

Only rarely will a psychiatric fitness for duty examination result in a finding that the employee is unfit for duty. Such an employee will subsequently have a claim that any adverse employment action is the result of his or her disability or "perceived" disability, however. It is better to handle behavioral issues as disciplinary matters. For example, an employee who threatens violence against co-workers should be terminated for violating the workplace violence policy, not sent for a fitness for duty examination to determine if he is a threat to other employees.