Employment Law Blog

News, trends and analysis in employment law and HR

Jan 15, 2015

Termination for bad behavior is not disability discrimination or retaliation

Q&ADisability 

Question: Our company is working through some long-term performance issues with two employees who are not improving. Both of these employees have disabilities that we are actively accommodating so termination is risky, but do we have to just keep them on forever if they aren’t good employees?

Answer: No, you can (and, arguably, should) terminate employees who are engaging in misconduct or not adequately performing essential job functions, even if they are being accommodated for a disability, as long as the performance issues are not actually due to the disability. Two recent federal court cases support such terminations.

In a Ninth Circuit Court of Appeals case, the employer properly terminated an employee with a hearing impairment who had a history of threats of violence against coworkers, excessive personal calls while at work, soliciting clients for his consulting business on work time, and making negative comments about his supervisors and the company. The employee had a fit-for-duty evaluation before he was fired, and the doctor certified he was not a danger to himself or others. The employer fired him anyway, and the court supported it because (a) he was fired for threats he made in the past, not due to a danger of future violence, (b) his history of threats justified firing him regardless of whether or not he actually posed a danger to others, and (c) the other reasons for firing him were legitimate and unrelated to his disability (Curley v. City of North Las Vegas, 9th Cir, Dec. 2014).

In a Seventh Circuit Court of Appeals case, an employee working from home as an accommodation for her multiple sclerosis was appropriately fired after she was counseled about her tardiness and failure to give timely notice of absences and tardies numerous times over a four-year period. Her additional accommodation request for the company to rely on door swipes and computer logons instead of requiring her to check in with her supervisor when she was tardy was denied. The court was not swayed by her argument that regular attendance and punctuality couldn’t be essential functions of her job because the company had allowed her to work from home. Noting that the company had a detailed work-at-home policy requiring regular work hours and availability, and the numerous coaching and discipline on these issues, the Court found her requested accommodations were unreasonable and that she was not meeting her employer’s legitimate job expectations for attendance and punctuality (Taylor-Novotny v. Health Alliance Medical Plans, Inc., 7th Cir, Nov. 2014.


Tips: To ensure compliance, continue to document, document, document—on coaching and discipline, performance evaluations and reviews, and conversations with employees about requested or necessary accommodations. Keep in mind that determining whether an accommodation is reasonable depends on the duties of the specific job, and your organizational resources. For more information, see our online employment compliance resources, including our Model Form, “Disciplinary Report” (1567), and Legal Guides, “Performance Evaluations” (3264) and “ADA: Reasonable Accommodation and the Interactive Process” (1078). Contact your Vigilant employment attorney for employment counsel if you are considering termination of an employee for job performance reasons, if there is any possibility the employee could allege a failure to accommodate a known disability.

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