Wednesday, November 21, 2012

When Disabilities Attack: Accommodating Bad Conduct

The biggest problem that I encounter with Americans with Disabilities Act cases is that they are so fact specific that it’s often difficult to craft hard and fast rules for employers to follow that can prevent or limit exposure under the law. Many of these cases revolve around the specific essential elements of an individual’s job, and how the disability effects the performance of those essential elements. ADA cases become even more problematic when the essential job element is something that is not specified in a job description, but rather more of a generally accepted requirement for any position, such as civil conduct, and an ability to work with others.

So this recent Second Circuit decision is instructive on several levels, because it deals with a case in which the disabling condition created a conduct problem for the covered entity. It’s not an employment case per se, but the Second Circuit makes it very clear that the principles here apply to employment cases as well.

The plaintiff worked as a volunteer janitor and housekeeper in a nursing home. He had a neuro- developmental disorder that the Court characterized as “autism spectrum disorder”. After a series of complaints from female staff members that the plaintiff was acting inappropriately with them, and following the plaintiff’s somewhat bizarre statements during the nursing home’s investigation, the facility eliminated him from the volunteer program and barred him from entering its premises.

The plaintiff then filed a lawsuit under Title II of the ADA which requires a public entity to accommodate disabled individuals to allow participation in services, programs or activities provided by the entity. For our purposes, however, the analysis used by the Second Circuit applies equally to accommodations required of employers.

The Court first noted that workplace misconduct is a legitimate and nondiscriminatory reason for terminating an employee, and that a requested accommodation that “simply excuses past misconduct” is unreasonable as a matter of law. Moreover, even when an employer doesn't engage in the ADA’s required interactive process to determine possible accommodations, as happened here, an employee may not recover if the employee can’t show that a reasonable accommodation existed at the time of the termination of employment.

That’s an important point for employers - in certain circumstances, it will be immediately apparent that no reasonable accommodation of a disability is possible. In those limited situations, an employer is not required to engage in the interactive process, which typically involves discussing and identifying the disabling condition and matching it against the essential elements of a job to determine how the job might be modified.

The Court also noted that an employee who engages in inappropriate conduct with coworkers, customers, and management is not a qualified individual because he cannot meet an essential element of the job. This is also an important holding--the Court determined that a request to excuse past misconduct can never be a reasonable accommodation, and the inappropriate conduct, even if it resulted from his disability, was a legitimate nondiscriminatory reason for termination in this case.

The plaintiff had proposed two accommodations.  The first was that the nursing home management should have spoken with his therapist to encourage and help the plaintiff interact better with his colleagues. Unfortunately, there was nothing in the record that indicated that any further discussions with plaintiff's physician would have helped to modify his behavior. The second accommodation proposed an education program for plaintiff's colleagues to increase their tolerance for his aberrant behavior. The Court flatly rejected this proposal, noting that it did not even attempt to address the inappropriate activities of the plaintiff but merely lowered the standard for acceptable conduct in the workplace. Again, this was an unreasonable accomodation as a matter of law.

The case is noteworthy because it clearly states the standards for dealing with misconduct that arises out of a disabling condition. Frequently these types of cases are some of the more troubling ones that an employer will face – it’s nice to have solid guidance from the Second Circuit on these issues.

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