Labor & Employment Law

A tension between the ADA and employee misconduct

A tension between the ADA and employee misconduct
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

There is a tension in the ADA between protecting the disabled by requiring employer's to reasonably accommodate and permitting employers to discharge employees for misconduct. To illustrate, if an employee shows up under the influence at work and violates a work rule, is he a victim of discrimination if the employer fires him without first trying to accommodate his disablity?? The case law is in conflict with respect to this important issue.

Professor McCormick over at Workplace Prof Blog touches on this important issue in her posting entitled The ADA and Misconduct. She points to a recent EEOC informal discussion letter that provides in part:

The ADA generally allows employers to develop and enforce conduct standards that are job-related and consistent with business necessity, such as prohibitions on violence, threats of violence, or destruction of property, as well as requirements of timeliness and attendance. Similarly, employers may prohibit insubordination towards supervisors and managers, forbid employees from yelling, cursing, shoving, or making obscene gestures at each other in the workplace, and require employees to show respect for clients and customers. Although an employer must provide reasonable accommodations to enable an employee to perform a job or to enjoy equal benefits and privileges of employment, reasonable accommodation does not include excusing a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity even if an employee?s disability causes him to violate the rule.

I am deeply troubled by this letter. Does this mean that if the employer wants to terminate the employee for showing up under the influence, that the policy must be consistent with "business necessity"? Business necessity is a term of art in employment discrimination. In this context, it appears that it means that employers must establish that they had no other reasonable alternative other than to enforce the rule in question.

I am concerned that under this standard, much employee misconduct would be deemed protected. This is because employers will not be able to meet the business necessity standard.

This issue is ripe for law review commentary.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on June 11, 2008 (boomark / email).