INTRODUCTION :: An employer discharges an anesthesiologist with sleep apnea for falling asleep during surgical procedures. Another employer discharges a manager with post-traumatic stress disorder for an angry confrontation with a female co-worker during which he slapped her hand. A third employer discharges a grocery store clerk with Tourette’s Syndrome for outbursts of profanity and racial slurs in the workplace. A fourth employer discharges a long-standing administrative employee with major depression, who left work in an emotional crisis and was admitted to a psychiatric hospital, for leaving the workplace without notifying her direct supervisor.
The Americans with Disabilities Act (ADA) prohibits employment discrimination against qualified individuals with disabilities because of their disabilities. Assuming that the conditions of these employees constitute disabilities within the meaning of the Act, do any of their discharges implicate the protections of the ADA? A few courts have held that discharge due to conduct causally connected to a disability constitutes discrimination because of disability and violates the ADA unless the plaintiff is not qualified for his or her job. Some other courts have held that employers can discharge employees for conduct causally connected to their disabilities only if the violated conduct rules are job-related and consistent with business necessity. Most courts, however, have held that disabled employees who engage in misconduct are unprotected by the ADA, asserting that “if a disabled employee engages in misconduct, an employer may terminate or discipline that employee without incurring liability.” Under the majority view, a finding that an employee engaged in misconduct, even misconduct related to his or her disability, is generally fatal to the employee’s ADA claim. Moreover, although the ADA requires employers to make reasonable accommodation to the limitations of disabled individuals, courts have held that the duty of reasonable accommodation never compels an employer to excuse past misconduct.
The proper analysis of disability-related misconduct is an important issue under the ADA because many disabilities, particularly mental ones, manifest themselves in the form of conduct. If employers are able to avoid ADA scrutiny when discharging a disabled employee simply by pointing to the employee’s conduct, the ADA’s promise of equal employment opportunity to individuals with disabilities will be thwarted. On the other hand, providing too much protection to disability-related misconduct would interfere greatly with the ability of employers to operate their businesses safely and efficiently. The specter of a physician falling asleep during surgery with impunity, provided that he could later claim that his behavior was caused by a disability, is a frightening one. But is the majority view the only interpretation of the ADA that would avoid this consequence? In order for the anesthesiologist to lose his claim, is it necessary for the manager, the grocery store clerk, and the administrative employee to have no recourse under the ADA as well?
In the recent case of Raytheon Co. v. Hernandez, the Supreme Court indicated that the proper analysis of disability-related misconduct turns on the distinct forms of disability discrimination prohibited by the ADA: disparate treatment, failure to provide reasonable accommodations, and disparate impact. This Article analyzes the existing jurisprudence on disability-related misconduct through the lens of these forms of discrimination, demonstrating that courts have failed to apply them properly in cases involving misconduct.
Part II outlines the forms of discrimination prohibited by the ADA, as well as the ADA’s limited protected class. Part III describes the existing jurisprudence of the ADA and misconduct, discussing disabilities that may manifest themselves in the form of conduct and exploring current approaches to cases involving disability- related misconduct. Part IV critiques the current approaches first by exploring the meaning of “misconduct” and then by examining the lessons of Raytheon-and its emphasis on the distinct forms of discrimination-for disability-related misconduct cases. Part V applies the lessons of Raytheon to the cases of the anesthesiologist, the manager, the grocery store clerk, and the administrative employee, exploring the ability of these workers to challenge their discharges as disparate treatment, disparate impact, and failure to provide reasonable accommodation. As part of this analysis, this Article contends that a second chance should be a possible reasonable accommodation in cases (1) where there is little evidence of employee fault with respect to both the misconduct and the failure to request an accommodation prospectively, (2) where the misconduct is of low severity, and (3) where the employee is unlikely to repeat the misconduct. In Part VI, the Article concludes that, despite potential problems with accommodating misconduct, a finding that a discharged employee engaged in disability-related misconduct should not be fatal to the employee’s ADA claim. Rather, courts should scrutinize carefully whether such employees have experienced discrimination because of their disabilities, examining all of the forms of discrimination prohibited by the ADA.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person