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In many cases, employers must offer reasonable accommodations that address conduct or issues caused by the disabilities themselves, even conduct that might otherwise violate a company policy. Many courts have adopted the position that, with few exceptions, conduct resulting from a disability is considered part of the disability, rather than a separate basis for termination.1 For example, an employer generally cannot terminate an employee based on absenteeism and attendance problems when the employee's absenteeism is caused by a disability. The employer could, instead, reasonably accommodate the employee by altering the employee's work schedule, absent undue hardship. However, employers do not need to accommodate disability-caused conduct that is violent or threatening.
Employers have a duty to protect employees from workplace violence, and the EEOC states in its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities that “nothing in the ADA prevent[s] an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.”
According to the EEOC, the employer must be able to show that it enforces its policy consistently and doesn’t discipline a disabled employee more harshly than other employees who don’t suffer from a disability.
California courts have adopted the EEOC's position. In one case, an employee who suffered from bipolar disorder was terminated for violating her employer's policy against verbal threats, threatening conduct and violence in the workplace. A California Court of Appeal ruled that an employer may discipline an employee for workplace threats or violence even if the misconduct is caused by the disability.2 The court clarified that its decision was limited to the narrow context of conduct that involves threats of violence. The employer didn't try to claim that the worker posed a direct threat, but instead argued that it had the right to terminate her for violating company policy against workplace violence.
In another case, an employee was fired after making specific life-threatening comments about his supervisor and other managers and provided specific details about his plan to kill two or three specific people. The Ninth Circuit Court of Appeals ruled that the employee wasn't entitled to job protection because his extreme reactions to stressful situations showed he couldn't perform the essential functions of the position and that he was, therefore, not a qualified individual under the ADA.3
Employers should keep in mind that these cases are narrow, limited to conduct that involves threats of violence in the workplace. Employee outbursts that don’t involve threats of violence may be protected.
1. See Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1139 (9th Cir. 2001)
2. Wills v. Superior Court of Orange County, 195 Cal. App. 4th 143 (2011)
3. Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir. 2015)