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

Transcription

1 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, March 18, 2015

2 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. 2

3 Lauren Blevins is an associate at Brownstein Hyatt Farber Schreck, LLP and works in the firm s employment group. 3

4 Bill C. Berger is a shareholder at Brownstein Hyatt Farber Schreck, LLP. Bill s practice includes management-side employment, labor and OSHA. 4

5 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 Conference on Equal Opportunity Law, March 27,

6 Example Anesthesiologist Suffers from sleep apnea Which causes him to fall asleep during surgical procedures 6

7 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 residential areas some forty miles outside his jurisdiction. 7

8 More complicated examples include Mental disorders Bipolar Disorder Depression Obsessive-Compulsive Disorder Narcolepsy and sleep disorders Post-Traumatic Stress Disorder Anxiety Disorders 8

9 Note Alcoholism Illegal drug addiction Both are beyond the scope of this presentation. 9

10 How do courts analyze these issues? Perhaps surprisingly, there is significant disagreement about the blackletter law. 10

11 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 issue. We hope this is a handy reference tool. 11

12 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. 12

13 9 th and 10 th 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? Quoting McDonald, supra. 13

14 1 st, 4 th, 5 th, 6 th, 7 th, and 11 th 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 4 th 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, 429 (4th Cir. 1999). 14

15 Versus the 9 th 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, (9 th Cir. 2001)). 15

16 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 outbursts, etc. 16

17 9 th and 10 th 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 judgment for employer on ADA claim). 17

18 Versus Carrozza v. Howard County, 847 F. Supp. 365, (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 judgment for employer). 18

19 Examples 19

20 Anesthesiologist Suffers from sleep apnea Which causes him to fall asleep during surgical procedures How would you hold? 20

21 Actual case Brohm v. JH Props., Inc., 947 F. Supp. 299, (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). 21

22 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 residential areas some forty miles outside his jurisdiction. How would you hold? 22

23 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). 23

24 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. How would you hold? 24

25 Actual case Gasper v. Perry, No , 1998 U.S. App. LEXIS (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). 25

26 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 coworkers. 26

27 According to the EEOC: Steve s termination is permissible because it is job-related and consistent with business necessity. 27

28 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 other workers. 28

29 According to the EEOC: Steve s condition would not necessarily make him unqualified for a job in this environment. 29

30 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 serving customers. 30

31 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. 31

32 Questions? Thank you! 32