You’re listening to the Disability Law Lowdown, Show #21.
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Jacquie Brennan: Hi, this is Jacquie Brennan, your host for the Disability Law Lowdown. Today we’re going to discuss applying conduct standards to employees with disabilities under the Americans with Disabilities Act. New guidance was recently released by the Equal Employment Opportunity Commission and that document, which you can get at eeoc.gov, talks about applying performance and conduct standards. This podcast is going to focus just on the conduct standards part of this new guidance. It’s done in a question and answer format so that’s the way we’ll do it here for the podcast, too.
Q: May an employer discipline and employee with a disability for violating a conduct standard?
A: Yes. If an employee’s disability does not cause the misconduct, an employer may hold the individual to the same conduct standards that it applies to al other employees. In most instances, an employee’s disability will not be relevant to any conduct violations.
As an example, an employee who is blind has frequent disputes with her supervisor, she makes personal phone calls on company time despite being told to stop, she routinely walks away from the job to smoke a cigarette despite warnings that she can do so only on breaks, she taunts the supervisor and disobeys his instructions on the safe use of equipment. The employee’s actions are unrelated to her disability and the employer may discipline her for insubordination.
Another example, coworkers frequently taunt an employee with cerebral palsy because of his speech impediment, but the supervisor neither knows nor has reason to know about the taunting. Instead of reporting the coworkers behavior to his supervisor or to the Human Resources Department, the employee goes into the offices of his coworkers and destroys some of their property. The employer may discipline the employee because of his inappropriate response. Because the management, of course, would then be aware of the coworkers’ actions, it must properly investigate to determine whether those actions constitute harassment. If so, the employer must take appropriate action to prevent future harassment.
Q: If an employee’s disability causes violations of a conduct rule, may the employer discipline the individual?
A: Yes. If the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard. The ADA does not protect employees from the consequences of violating conduct requirements even where the conduct is caused by the disability. The ADA generally gives employers wide latitude to develop and enforce conduct rules. The only requirement imposed by the ADA is that a conduct rule be job-related and consistent with business necessity when it’s applied to an employee whose disability caused her to violate the rule.
Certain conduct standards the exist in all workplaces and cover all types of jobs will always meet this standard such as a prohibition on violence or threats of violence, or stealing or destruction of property. In the same way, employers may prohibit insubordination towards supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers.
Employers also may prohibit inappropriate behavior between coworkers, in other words employees may not yell or curse or shove or make obscene gestures at each other while they’re at work. Employers may prohibit employees from sending inappropriate or offensive emails or using the internet to access inappropriate websites like pornographic websites, and making excessive use of the employers computers and other equipment for purposes unrelated to work.
Employers also may require that employees observe safety and operational rules enacted to protect workers from dangers that are inherent in certain workplaces. Employers may also prohibit drinking or the illegal use of drugs in the workplace.
As an example, Steve, a new bank teller, barks, shouts, utters nonsensical phrases, and make other noises that are so loud and frequent that they distract other tellers and cause them to make errors in their work. Customers also hear Steve’s vocal tics and several of them speak to Donna, the bank manager. Donna discusses the issue with Steve and he explains that he has Tourettes Syndrome, a neurological disorder characterized by involuntary rapid sudden movements or vocalizations that occur repeatedly.
Steve explains that while he could control the tics sufficiently during the job interview, he can’t control them throughout the whole work day nor can he modulate his voice to speak more softly when the tics occur. Donna lets Steve continue to work for another two weeks, but she gets more complaints from customers and from other tellers who, because they work in close proximity to Steve, continue to have difficulty processing their own transactions. Although Steve is able to perform his basic bank teller account duties, Donna terminates Steve because his behavior is not compatible with the essential function of serving customers and his vocal tics are unduly disruptive to his coworkers.
Steve’s termination is permissible in that case because it’s job related and consistent with business necessity to require that bank tellers be required to conduct themselves in an appropriate manner when serving customers and refrain from interfering with the ability of coworkers to perform their jobs. Further, because Steve never performed the essential functions of the job satisfactorily, the bank did not have to consider reassigning him as a reasonable accommodation.
Another example, Steve works as a bank teller but because his Tourettes Syndrome now causes only infrequent throat clearing and eye blinks, these behaviors are not disruptive to the other tellers and they are compatible with serving customers. So, firing Steve for those behaviors would violate the ADA because it would not be job related and consistent with business necessity to require Steve to refrain from minor tics which don’t interfere with the ability of his coworkers to do their jobs or with his own delivery of appropriate customer service.
Another example, a telephone company employee’s job requires her to spend ninety percent of time on the phone with coworkers in remote locations discussing installation of equipment. The company’s code of conduct requires workers to be respectful towards coworkers. Due to her psychiatric disability, the employee walks out of meetings, hangs up on coworkers on several occasions and uses derogatory nicknames for coworkers when talking with other employees. The employer first warns the employee to stop her unacceptable conduct and, when she persists, issues a reprimand. After receiving the reprimand, the employee requests a reasonable accommodation.
The employee’s antagonistic behavior violated a conduct rule that’s job related and consistent with business necessity and therefore the employer’s actions are consistent with the ADA. However, having gotten a request for a reasonable accommodation, the employer should discuss with the employee whether an accommodation would assist her in complying with the code of conduct in the future.
Another example, Darren is a longtime employee who performs his job well. Over the past few months he is frequently observed talking to himself, though he does not speak loudly, make threats or use inappropriate language. However, some coworkers who are uncomfortable around him complain to the division manager about Darren’s behavior. Darren’s job does not include customer contact or working in close proximity to coworkers and his conversations do not affect his job performance. The manager tells Darren to stop talking to himself, but Darren explains the he does so as a result of a psychiatric disability. He doesn’t mean to upset anyone but he can’t control this behavior. Medical documentation supports his explanation. The manager doesn’t believe Darren poses a direct threat to anyone but he transfers Darren to the night shift where he’ll work in relative isolation and have less opportunity for advancement, saying that his behavior is disruptive.
Although the coworkers might feel some discomfort under these circumstances, it’s not job related and consistent with business necessity to discipline Darren for disruptive behavior. It would also violate the ADA to transfer Darren to the night shift based on this conduct. While it’s possible that the symptoms or manifestations of an employee’s disability could, in some cases, disrupt the ability of others to do their job, that’s really not the case here. Employees have not complained that his voice is too loud or anything about the content of what he’s saying or that he’s preventing them from doing their jobs. They simply don’t like to be around someone who talks to himself.
Q: May an employer discipline an employee whose only misconduct results from a disability for conduct that’s prohibited in an employee handbook or other similar document?
A: No. An employer may enforce conduct rules that are not found in workplace policies, employee handbooks or similar document as long as they are job related and consistent with business necessity and applied to all employees consistently and not just a person with a disability. Many times the conduct that’s prohibited is well-understood by both the employer and the employees as being unacceptable without being formally written such as a prohibition on insubordination.
As an example, Mary’s disability has caused her to yell at and insult her supervisor and coworkers. There’s no formal policy addressing such conduct nor does there need to be. Prohibiting an employee from acting belligerently towards a supervisor or coworkers is job related and consistent with business necessity. So Mary’s supervisor may discipline her as long as the same discipline would be imposed on an employee without a disability for the same conduct.
Sometimes an employee’s conduct may not be directly addressed by a conduct rule but nonetheless clearly violates a behavior norm that is job related and consistent with business necessity.
For example, Jane had Down Syndrome and she’s employed as a bagger at a grocery store. Jane is very friendly and likes to hug customers as they leave. Although she means well, management finds this behavior unacceptable. Jane’s manager talks to her and also contacts the job coach who helped Jane learn to do the job. The manager explains the unacceptable behavior and, as a reasonable accommodation, has the job coach return to work with Jane for a few days until she learns she cannot hug the customers. It is job related and consistent with business necessity to require that Jane refrain from hugging customers. Although the grocery store does not have a rule specifically prohibiting physical contact with customers, refraining from such contact is an inherent part of treating customers with appropriate respect and courtesy.
Another example, Jenny has cerebral palsy which causes her hands to shake. The supervisor observes her spilling some of her drink on the counter in the office kitchen and notices that she fails to clean it up. The supervisor has observed non-disabled employees leaving a mess but has never disciplined them for this behavior. Nevertheless, the supervisor tells Jenny she can no longer use the kitchen because of her failure to clean up the spill. Although Jenny’s disability didn’t really prevent her from cleaning up, singling her out for punishment could be a violation of the ADA. On the other hand, the supervisor could have prohibited Jenny from using the kitchen if he had previously announced that employees would be required to clean up after themselves or risk being denied access to the kitchen.
As practical guidance, the EEOC says that whether rules are written or not, employers should be careful that all conduct rules are applied consistently and should not single out an employee with a disability for harsher treatment. In addition, because ad hoc rules are just that, they’re ad hoc, an employer may have more difficulty demonstrating that those rules are job related and consistent with business necessity.
Q: May an employer require an employee to change or receive treatment for a disability to comply with a conduct standard?
A: No. Decisions about medication and treatment often involve many considerations that are beyond the employer’s expertise. As practical guidance, the EEOC says that regardless of whether employers believe they are trying to help employees who have medical conditions, employers should focus instead on addressing unacceptable workplace conduct. Employer comments on the disability and its treatment could lead to potential ADA claims.
Although employers should not intervene in medical decisions, they should be prepared to discuss providing a reasonable accommodation that would enable an employee to correct a conduct problem. The ADA requires an employer to provide a reasonable accommodation regardless of what effect medication or other medical treatment may have on the employee’s ability to perform the job. However, if an employee does not take medication or receive treatment and, as a result, cannot perform the essential functions of the position or poses a direct threat, even with a reasonable accommodation, she is unqualified. In the same way, if an employee does not take medication or receive treatment and, because of that, cannot meet a conduct standard even with a reasonable accommodation, the employer may take disciplinary action.
For example, an employee with a psychiatric disability takes medication, but one side effect is that the employee sometimes becomes restless. The employee’s restlessness causes him to become easily distracted by nearby colleagues which in turn causes him to interrupt his coworkers. The supervisor counsels the employee about the disruptiveness and the lack of focus. The employee tells the supervisor about his disability and the side effect of the medication he takes and asks to be moved to a quieter workspace to lessen the distractions. He also said it would be helpful if his supervisor gave him more structured assignments with more deadlines to focus his attention. The supervisor consults with the HR director, telling her there is a special medication that could control the restlessness. The HR director appropriately rejects the supervisor’s suggestion and recommends the supervisor begin providing more structured assignments while she requests medical documentation from the employee confirming the side effect. Once confirmed, the HR director finds a vacant cubicle in a quiet part of the office which, together with the more structured assignments, resolves the issue.
Hope you learned a little something about applying conduct standards to employees with disabilities under the Americans with Disabilities Act and that you’ll tune in again to the Disability Law Lowdown.
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