An Employer Created Disability, or, The Self Licking Ice Cream Cone

A case out of South Dakota shows how encompassing the Americans with Disabilities Act has become under the new amendments. Specifically, this case is an example of an employer using its progressive discipline policy and actually creating a disability that it is then charged with accommodating.

The plaintiff, a K-12 art teacher, was assigned additional duties teaching a remedial class for which she did not feel qualified. After she complained, the school district began monitoring her teaching performance and identified areas of concern where her supervisor expected performance improvement. Her supervisor routinely monitored her classes and placed her on a formal “plan of assistance” requiring her to improve performance in certain areas  by a specific deadline.

Allegedly as a result of this supervision, plaintiff developed anxiety symptoms, depression, weight loss, and sleep pattern deficits. The plaintiff’s physician sent a letter to the school administration requesting some 13 changes in her work environment, including cutting off the observations of her classes, having an “impartial” representative at any meeting that she had with her supervisor, tentative breaks whenever the plaintiff felt necessary and providing coverage available at no notice so that plaintiff could leave whenever she felt overwhelmed by her work environment. The school district responded with a letter agreeing to provide some of these accommodations rejecting some and requesting clarification. The parties exchanged letters again regarding clarification on the accommodations, but the matter went no further after the district's last letter went unanswered. Ultimately, the school district failed to renew the plaintiff’s contract. She had taken a medical leave of absence several months earlier.

The district court determined that plaintiff had a disability given the physical and psychological reaction she had to the employer's progressive discipline system. The court then determined that the school district, although it had some interaction with plaintiff, did not make  a "good faith" effort to resolve plaintiff’s request for an accommodation. The facts on this are, quite frankly, disturbing for employers. Plaintiff specifically failed to respond to the school district’s last letter, and the school district argued that plaintiff simply shut down the discussion, obviating any finding of liability on the part of the school district. But the court noted that the school district, via plaintiff’s supervisor, advised her at almost the same time it sent the last letter that it was recommending that her contract not be renewed. Given that this recommendation was pending, and plaintiff knew about it, the court surmised that plaintiff and a jury could conclude that this school district was not acting in good faith.

The court leaves a lot out of its discussion  - I suggest that the nonrenewal letter timing was mandated by district procedures and that it could not have provided a basis for a reasonable plaintiff to refuse to participate in the interactive process any further.  There was a full school board hearing that had to take place before plaintiff's contract could be terminated, so the non-renewal letter was more of a preliminary procedural step rather than a final adjudication.  But all this was lost on the court.

So what this case stands for is that an employer can undertake a good faith disciplinary process, and find itself saddled with an ADA claim as a result of its efforts, and then have the plaintiff unilaterally close off the interactive process as the employer moves through its disciplinary process requirements. I would think at some point that the plaintiff has to bear some responsibility for keeping her job. For whatever reason, the South Dakota court skewed what should have been a fairly straightforward determination far too much in the Plaintiff’s direction and favor.

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.

Miniature Horses, Golf Courses, and Allotments of Common Sense

A recent news story highlights another aspect of the Americans with Disabilities Act that occasionally touches on employment law- ADA public accommodation rules, which are found in the regulations entitled "Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities" , a guide published by the Department of Justice.

These are the regulations that have plenty of good intention, but in practice frequently create what I would characterize as absurd results. Case in point-a requirement for business establishments, including restaurants, to accommodate so-called "guide or companion miniature horses" for people who, out of choice, allergy, or religious belief (Muslims, for example, frequently do not want to use guide dogs) can't use a guide or companion dog. In an apparent effort to "normalize" the presence of novelty animals, the regulations note that people have traveled, including air travel, with miniature horses, as if this were an everyday and relatively inconsequential event.

Personal note-I have yet to get on an airplane with a horse, miniature or otherwise. I would bet that no one in the DOJ has, either.  And I can't imagine the accommodation that would be necessary for other passengers who found a horse in the seat next to them.

There are some similarly problematic requirements for miniature golf courses (you can't have too much slope on the putting areas), shooting ranges (accommodations have to be made so that the disabled can shoot in all positions.  Really? Even the prone position?), and health clubs. Unfortunately, what seems to be missing from the analysis is some type of cost-benefit assessment. I'd like to know whether someone at the DOJ had to account for whether it makes economic sense for these establishments to make thousands of dollars in retrofit adjustments for the benefit of relatively few users. Or whether it makes sense for airlines to put a "horse friendly" seating area on every airplane. At some point there will be some type of public backlash. But I think we'll have to see how this initiative plays out in terms of enforcement actions before we get a real feel for the true cost of compliance.