Question: We recently confirmed that an employee violated our workplace violence policy by making threatening gestures to her manager. The employee is deaf and has accommodations in place to help her communicate at work. She admitted that she got frustrated while trying to get through to her manager, and formed a gun shape with her hands. Her manager wants to fire her but other employees were given warnings for making threats at work. Can we move forward with termination?
Answer: Not so fast! To avoid a claim of discrimination, you should first ensure that the investigation was fair, impartial, and conducted as thoroughly as other internal investigations. If the fact-finding investigation is hasty, incomplete, or inadequate in any way, your organization is open to a claim that the employee was unlawfully discriminated against because she was denied the same process and protections as other (nondisabled) employees in similar circumstances. It is imperative to follow a consistent process for every internal investigation, especially those involving comparable conduct. Before deciding on the appropriate corrective action, you should consider how you handled discipline for similar behavior in the past. Finally, consider whether the employee would have engaged in the behavior if she hadn’t been deaf, or if she had been provided a different accommodation that would have removed the communication barriers that led to her frustration. To the extent any member of management had notice prior to the incident that one or more accommodations wasn’t working for this employee, the company should reopen the interactive process and evaluate other potential solutions under the Americans with Disabilities Act (ADA).
Federal Court Allows Deaf Employee’s ADA Lawsuit to Move Forward After Hand Gesture Misinterpretation
Recently a federal district court ruled on similar facts that an employee’s discrimination claim could proceed to a jury trial because there was evidence to suggest that the allegedly threatening conduct wouldn’t have occurred if the employee wasn’t deaf. When she was hired, the employee disclosed that she was deaf but could communicate in writing and through sign language. Over the next 17 years of her employment, the company provided various accommodations involving different communication methods to assist the employee in performing her duties and participating in meetings, which the employee said were inadequate. She had no record of prior performance issues or policy violations before the incident when she pointed “finger guns” at her manager.
Best Practices for Employers to Uncover Underlying Disability Factors Before Terminating for Conduct Violations
The employee claimed that if she had an interpreter at the time of the incident, she and her manager could have “cleared up” their misunderstanding; she wasn’t trying to make a gun sign or threat, but rather express frustration. The employee also said that she didn’t fully understand company policies due to the lack of an interpreter. Significantly, the employee presented evidence that other employees who violated the policy against workplace violence by repeatedly making verbal threats were not subject to immediate termination. The evidence also revealed that the company’s investigation into the deaf employee’s alleged misconduct was less thorough than the process undertaken for similar incidents. Ultimately, the court ruled that a “single, nonverbal gesture, made during a failed attempt to communicate without an interpreter” did not necessarily render the employee unqualified for her position. Now a jury will have the opportunity to decide if the employee’s gesture (which she said was misinterpreted) resulted from a disability, which would not be a legitimate basis for termination under the ADA (Seredina v. W.L. Gore & Assoc., Inc., D Ariz, June 2026).
Always look beyond the policy violation before taking adverse action against an employee to ensure they have received fair and equal treatment, regardless of the employee’s protected status. Train your managers to exercise caution and immediately engage HR when workplace conduct might be tied to a disability.
One final note: Just because misconduct is caused by a disability doesn’t give an employee free rein. But knowing the cause gives an employer the opportunity and obligation to explore reasonable accommodations to eliminate or sufficiently reduce an undue hardship on the business or a direct threat to health and safety.
Vigilant members: For specific legal advice, contact your Vigilant Law Group employment attorney.
