Q&A: Employee terminated for violating company code of conduct
Question
An employee was terminated because he violated the company’s code of conduct by making sexually inappropriate comments to several employees during an event. He was given on-the-spot feedback that his behavior was unprofessional and unwelcome, but he continued. During the termination meeting, he claimed that behavior was caused by a social anxiety disorder and that being around others made his disability worse. This is the first time he has raised the issue of having a disability.
What options do we have now?
Answer
Both federal law under the Americans with Disabilities Act (ADA) and state law under the Fair Employment and Housing Act (FEHA) prohibit employment discrimination based on disability. However, an employer must be aware of an employee’s disability to be liable for discrimination. If a disability is not obvious, it is up to the employee to disclose the disability and make the need for an accommodation known.
Under the ADA, employees with disabilities may be held to uniformly applied conduct standards that are job related and consistent with business necessity. Employers do not have to tolerate or excuse violence, threats, stealing or destruction of property from employees with disabilities any more than they do from other employees. Employers may impose the same discipline on an employee with a disability who engages in misconduct as they would on an employee without a disability.
In its Enforcement Guidance on the ADA and Psychiatric Disabilities, the EEOC explains that employers may discipline individuals with disabilities for violating workplace conduct standards even if the misconduct is the result of the employee’s disability. Similarly, employers may prohibit insubordination towards supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers. However, imposing discipline for conduct standards that are not job-related and consistent with business necessity could violate the ADA.
The EEOC has also issued guidance on Applying Performance and Conduct Standards to Employees with Disabilities which provides the following information:
“10. What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?
If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.
If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help her avoid future misconduct. If an accommodation is requested, the employer should begin an “interactive process” to determine whether one is needed to correct a conduct problem, and, if so, what accommodation would be effective. The employer may seek appropriate medical documentation to learn if the condition meets the ADA’s definition of “disability,” whether and to what extent the disability is affecting the employee’s conduct, and what accommodations may address the problem.
Employers cannot refuse to discuss the request or fail to provide reasonable accommodation as a punishment for the conduct problem. If a reasonable accommodation is needed to assist an employee with a disability in controlling his behavior and thereby preventing another conduct violation, and the employer refuses to provide one that would not cause undue hardship, then the employer has violated the ADA.”
The same relevant factors apply under the FEHA in California. This HR Daily Advisor article about the issue may be helpful to you as it points out the following principle for employers:
“If you later become aware that misconduct was caused by a disability, you don’t have to retract an otherwise proper disciplinary action. You still may move forward with discipline if the misconduct violates a job-related rule that applies to all employees, such as requirements that employees deal appropriately with customers.”
Finally, as noted above in the EEOC’s guidance, when an employer begins the interactive process to determine whether a reasonable accommodation is needed to correct a conduct problem, the employer may seek appropriate medical documentation to learn if the condition meets the ADA’s definition of “disability,” whether and to what extent the disability is affecting the employee’s conduct, and what accommodations may address the problem. It is important for an employer to obtain appropriate medical documentation from the employee’s healthcare provider rather than try to determine on its own whether an employee has a disability.
Because of the complex issues and potential liability involved in the scenario you describe; we recommend consultation with legal counsel who can review all the relevant facts and circumstances and provide legal advice accordingly.
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