ADA-Protected Misconduct? Is it misconduct, or is it a disability, or both?

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“ADA-

Protected

Misconduct? Is it

misconduct, or is it a disability, or

both?”

Presented by:

CarolAnn McConville, Lauren Blevins, and Bill Berger

Labor & Employment Law Section of the Colorado Bar Association

Thursday, March 19, 2015 March 18, 2015

• CarolAnn McConville is Associate General Counsel at

CenturyLink. A graduate of Cornell Law School, CarolAnn was previously with Mercury Companies, Inc., and Merrill Lynch. CarolAnn’s practice regularly involves employment issues.

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• Lauren Blevins is an associate at Brownstein Hyatt Farber Schreck, LLP and works in the firm’s employment group.

• Bill C. Berger is a shareholder at Brownstein Hyatt Farber Schreck, LLP. Bill’s practice includes management-side employment, labor and OSHA.

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“My disability made me do it!”

• 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

Example

• Anesthesiologist

• Suffers from sleep apnea

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Example

• Police officer

• Suffers from diabetes

• Experienced a diabetic reaction which resulted in disorientation and

memory loss.

• This caused him to erratically drive his squad car at high speed through

More complicated examples include

• Bipolar Disorder • Depression

• Obsessive-Compulsive Disorder • Narcolepsy and sleep disorders • Post-Traumatic Stress Disorder • Anxiety Disorders

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Note

• Alcoholism

• Illegal drug addiction

How do courts analyze these issues?

• Perhaps surprisingly, there is significant disagreement about the blackletter law.

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Handout

• Disability Related Conduct and the ADA.

• In putting this together, we summarized the various approaches and broke down into a chart different case holdings on this

EEOC Approach

• An employer may discipline an employee for violating a workplace conduct standard even when the misconduct is related to a disability so long as the conduct standard is

uniformly applied, job-related for the position, and is consistent with a business necessity.

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_{and 10}

_Circuits

“1. Is the misconduct the result of illegal drug use or alcohol abuse?

2. Is the misconduct ‘egregious and criminal’?

3. Does the misconduct pose a ‘direct threat’ to the health or safety of others?

4. Will it be an undue hardship for the employer to accommodate the misconduct?”

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, 4

th

, 5

th

, 6

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, and 11

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Circuits

• In a nutshell, employees “cannot hide behind the ADA and

avoid accountability for [their] actions.” Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998).

• Compare 4th Circuit: “The law is well settled that the ADA is not violated when an employer discharges an individual based upon the employee’s misconduct, even if the misconduct is related to a disability.” Jones v. Am. Postal Workers Union, 192 F.3d 417,

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• Versus the 9th Circuit: “Conduct resulting from a disability is part of the disability, and not a separate basis for termination.”

Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1090 (9th Cir. 2007) (quoting Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1139-40 (9th _{Cir. 2001)).}

Not only different blackletter law, but

different conclusions on the facts.

• Consider plaintiffs who suffer from bipolar disorder

• Which causes them to engage in insubordinate behavior, improper

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_{and 10}

_Circuits

• Husowitz v. Runyon, 942 F. Supp. 822, 826 (E.D.N.Y. 1996) (holding the

plaintiff’s misconduct was “the direct result of his mental disability,” the court held that the plaintiff established that he was suspended because of his disability).

• Gambini v. Total Renal Care, Inc., d/b/a DaVita, Inc., 486 F.3d 1087, 1095

(9th Cir. 2007) (holding conduct resulting from a disability is part of the disability, and not a separate basis for termination).

• Den Hartog v. Wasatach Academy, 129 F.3d 1076 (10th Cir. 1997) (holding

that an employer may not hold a disabled employee to precisely the same standards of conduct as a non-disabled employee unless such standards are job-related and consistent with business necessity, affirming summary

Versus

•

Carrozza v. Howard County

, 847 F. Supp. 365, 367-68 (D.

Md. 1994) (holding an employee with bipolar disorder and

insubordinate behavior could be terminated as the ADA

does not bar termination where there is misconduct, even

if caused by a qualifying disability, granting summary

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Anesthesiologist

• Which causes him to fall asleep during surgical procedures • How would you hold?

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Actual case

• Brohm v. JH Props., Inc., 947 F. Supp. 299, 300-01 (W.D. Ky.

1996), aff’d, 149 F.3d 517 (6th Cir. 1998) (holding plaintiff fired for his specific conduct, sleeping on the job, and not because of a disability manifested by the sleeping).

Police officer

• Experienced a diabetic reaction which resulted in disorientation and memory loss.

• This caused him to erratically drive his squad car at high speed through residential areas some forty miles outside his

jurisdiction.

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Actual case

• Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995) (holding diabetic police officer who drove erratically due to severe diabetic reaction was not covered under the ADA).

Walks like a duck …

• A cartographer with frontal lobe dysfunction terminated for bizarre behavior such as quacking at a coworker who was carrying a duck head umbrella.

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Actual case

• Gasper v. Perry, No. 97-1542, 1998 U.S. App. LEXIS 14933 (4th Cir. July 2, 1998) (Although the employee asserted that these instances of misconduct were caused by his disability, there was no evidence that the employer terminated the employee

because of his disability, rather than because of the misconduct).

Even the EEOC’s approach recognizes these

issues can be highly fact dependent.

• Steve, a new bank teller with Tourette Syndrome, 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.

• Although Steve is able to perform his basic bank teller

accounting duties, he is terminated because his behavior is not compatible with performing the essential function of serving customers and his vocal tics are unduly disruptive to

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• According to the EEOC:

• Steve’s termination is permissible because it is job-related and consistent with business necessity.

Even the EEOC’s approach recognizes these

issues can be highly fact dependent.

• Alternative #1:

• Steve has all the same severe tics, but he now works in a noisy

environment, does not come into contact with customers, and does not work close to coworkers.

• The environment is so noisy that Steve’s vocalizations do not distract

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• According to the EEOC:

• Steve’s condition would not necessarily make him unqualified for a job

Even the EEOC’s approach recognizes these

issues can be highly fact dependent.

• Alternative #2:

• Steve is back to working as a bank teller but his Tourette Syndrome now

causes only infrequent throat clearing and eye blinks.

• These behaviors are not disruptive to other tellers or incompatible with

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• According to the EEOC:

• Firing Steve for these behaviors would violate the ADA.

• The EEOC contends it would not be job-related and consistent with

business necessity to require that Steve refrain from minor tics that do not interfere with the ability of his coworkers to do their jobs or with the delivery of appropriate customer service.

Questions?