When Is Behaving Badly in the Workplace Not Protected Behavior?

Fired Worker

Rules governing workplace behavior are common—in fact, almost all companies have them. Under federal disability law, employers generally have wide latitude to enforce those rules, even where workers with disabilities violate them and their disabilities triggered the misconduct.

Americans with Disabilities Act litigation involving conduct rule enforcement typically arises when employees facing disciplinary action claim that they violated a rule because of their impairment. In this context, courts must balance employers’ right to enforce conduct rules with disabled employees’ right to reasonable accommodation.

Employment attorneys addressed the intersection of conduct rule enforcement and reasonable accommodation during an American Bar Association webinar presentation. Here are their key takeaways—

EEOC and Courts Agree (Mostly)

When addressing misconduct by an employee with a disability, the first question that needs to be resolved is whether there’s a causal link between the employee’s disability and the behavior. That’s important in determining whether termination or other discipline is lawful.

An employer may discipline an employee with a disability for violating a conduct standard that’s applicable to all workers if the disability didn’t play a role in causing the misconduct, according to senior attorney advisor Sharon E. Rennert of the Equal Employment Opportunity Commission. In that case, disability is “irrelevant” when the conduct issue surfaces.

However, where the employee’s disability caused or contributed to the misconduct, the employer may take disciplinary action only if certain requirements are met. The conduct standard at issue must be job-related and consistent with business necessity and other employees must be held accountable to the same standard, she said, citing ADA regulations (29 C.F.R. §§ 1630.10(a), 1630.15(c)).

This is commonly referred to as the “business necessity standard.”

“It’s not necessarily meant to be an onerous test,” Rennert said.

The vast majority of federal courts of appeals follow the commission’s approach where a disability causes or contributes to the misconduct.

“They view the termination as a result of the misconduct and not because of the disability,” said Lori D. Ecker, a plaintiffs-side employment lawyer in Chicago.

However, in the Ninth and Tenth circuits, employers may not always hold employees with disabilities to the same conduct standards as employees without disabilities.

These circuit courts “have come out pretty strong recently” with their view that “conduct resulting from a disability is considered to be part of the disability, and these cases are going to trial,” Ecker cautioned.

What Standards Pass Muster Under ADA?

Certain conduct standards generally meet the business necessity requirement. These are found in almost every workplace, and include rules prohibiting violence or threats of violence, stealing or destruction of property, insubordination towards supervisors and managers, inappropriate behavior between co-workers, alcohol consumption and illegal drug use in the workplace, and inappropriate use of computers, Rennert said.

Another acceptable standard may require that employees show respect for clients, customers and the public.

The EEOC provides these examples in its 2008 enforcement guidance, Rennert said, noting the list is nonexhaustive.

Conduct rules that are ambiguous as to the type of behavior that’s unacceptable, such as rules prohibiting “disruptive” behavior, may require more evaluation, she said.

When treading in these gray areas, employers should consider the specific conduct at issue, the symptom of disability affecting the worker’s conduct, and the nature of the job and work environment.

For example, an “anti-disruptive” behavior rule might meet the business necessity test as applied to an employee with Tourette Syndrome who exhibits vocal and visual tics if the person works directly with the public as a bank teller. But if a person with the same condition and behaviors works in solitary as a warehouse worker, the test might not be met, Rennert explained.

Timing Is ‘Critical’

As a general rule, employees with disabilities are free to request accommodations at any time. Employers may have to provide reasonable accommodations to enable compliance with conduct rules.

But when there are conduct problems, the timing of the accommodation request becomes critical, Rennert said.

If the employee seeks an accommodation for the first time after exhibiting conduct that merits termination, an employer never has to withhold or rescind the discipline or alter a conduct rule as an accommodation, she said. After an employee engages in conduct warranting termination, a reasonable accommodation request doesn’t preclude an otherwise lawful discharge, unless the employer’s policy creates an exception.

After misconduct that warrants lesser discipline, such as a warning or a three-day suspension, an employer can impose the discipline but simultaneously should commence the interactive process.

Help Is Just a Click Away

“Remember part of the interactive process can be reaching out to third parties,” Rennert suggested to employers exploring different types of accommodations.

The Job Accommodation Network is a “wonderful resource,” she said, as are many disability organizations.



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