Blurred photo of green vine

Does the ADA Require More Flexible Employee “Misconduct” Rules?

It is, of course, illegal to discriminate against an employee because they have a disability—to fire someone because the employer learns they have been diagnosed with schizophrenia, for example.  But what about when the disability causes conduct that might otherwise be a legitimate basis for an action like firing? What if, for example, that schizophrenia or its treatment sometimes makes the employee late for work?

While the cases discussed in this piece involve employment, accommodations for disability-related conduct are even clearer outside of work:  housing, for example, or education, or public programs.  And the same logic applies to public accommodations. 

Courts Weigh a Potential “Misconduct” Loophole

Several federal appeals courts have held that employers have to consider reasonable accommodations for disability-related conduct—if the employer knows the problem is caused by a disability.  As a federal court in Colorado put it, the ADA does “not   contemplate   a   stark   dichotomy  between  ‘disability’ and  ‘disability-caused misconduct,’ but  rather  protects  both.”[1]  Courts in New York, California, and Boston have agreed.[2]  Other courts have disagreed, though, with rulings suggesting that “misconduct” should be carved out of the ADA.[3]  The Supreme Court has, so far, declined to weigh in. 

The minority attempt to read a judge-made loophole into the law should fail.  The ADA has no special exception for “misconduct” anywhere in its language.  Judges in the past have tried to make up special hurdles for civil rights plaintiffs rather than sticking with the plain language of the law that Congress passed.  This strategy has never been successful, even with conservative judges.[4] 

The ADA Already Precludes a “Disability Con”

Courts want to be sure that a diagnosis is not being used as an excuse for favorable treatment.  One scholar called this “fear of disability con.”  The ADA—an extensively negotiated, bipartisan statute—was well-aware of this concern.  Courts can simply follow the law’s provisions to deal with it.  Some people don’t have a serious disability or can do better.  Courts also want to protect employers from having to make so many accommodations that the job does not get done. 

The law already protects against both of these scenarios.  For ADA protection, a person must have solid proof not only of disability but that the disability caused the problem.[5]  As to getting the job done, the worker has to prove they can do the “essential functions” of the job,[6] and the defendant can show that an accommodation is too hard.[7]  Moreover, the employer can show a “direct threat” justifies the discrimination—if there is a significant risk to health or safety that reasonable accommodation cannot eliminate.[8] 

Sticks, by Theo Goodell,

Not an Excuse

People with disabilities tell me they still want to be held accountable for their behavior.  Veterans, for example, say that making PTSD an excuse for harmful behavior can be counterproductive and stigmatizing.  Applying the ADA to behavior is not about lowering expectations of disabled employees.  Rather, employers can take steps such as rethinking rigid policies.  Lateness rules can be relaxed if the job gets done.  As we’ve seen with the COVID pandemic, many jobs can get done with much more time and location flexibility.  Indeed, studies show that workplaces that provide flexibility may well be not only more human, but more productive.  As in many areas, the ADA might spur something that is a good idea for everyone.

[1] McKenzie v. Dovala,  242  F.3d  967,  974  (10th  Cir.  2001). 

[2] McMillan v. City of New York, 711 F.3d 120, 129 (2d Cir.  2013); Dark v.  Curry  Cty.,  451  F.3d  1078,  1084  (9th   Cir.  2006);   Ward v.   Massachusetts   Health   Research Inst., Inc., 209 F.3d 29, 38 (1st Cir. 2000).

[3] See, e.g. Hannah P. v. Coats, 916 F.3d 327, 341 (4th Cir. 2019), cert. denied sub nom. Hannah v. Maguire, 140 S. Ct. 1294 (2020).

[4] See, e.g. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (rejecting “direct evidence” requirement that courts had imposed for certain employment discrimination claims).

[5] 42 U.S. Code § 12112(a).

[6] 42 USC § 12111(8).

[7] 42 U.S.C. § 12112 (b)(5)(A).

[8] 42 U.S.C. § 12111(3).