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Cardozo Law Review

Abstract

Disabilities often manifest themselves in behavior that could be characterized as misconduct. Since the early days of the Americans with Disabilities Act (ADA), courts have struggled with how to treat disability-related misconduct in the workplace. In Raytheon Co. v. Hernandez, the Supreme Court indicated that terminating an employee for violating a neutral, generally applicable conduct rule is not disparate treatment because of disability. Instead, the Court suggested that concern about the effect of such a rule on a disabled employee should be addressed under the disparate impact theory of discrimination. In the years that followed, Congress enacted the ADA Amendments Act of 2008, and the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance on applying conduct standards to employees with disabilities. This Article explores courts’ current treatment of disability-related misconduct, focusing on the three forms of disability discrimination prohibited by the ADA: disparate treatment, failure to provide reasonable accommodation, and disparate impact. It reveals that the law of disparate treatment and the duty of reasonable accommodation incentivize employers to adopt zero-tolerance policies under which the sanction for certain types of misconduct is always termination. Moreover, courts rarely utilize the disparate impact theory in disability-related misconduct cases, even though conduct rules in general—and zero-tolerance conduct rules in particular—are likely to have an exclusionary effect on individuals with disabilities. This neglect of the disparate impact theory is a mistake. Courts and litigants should take the disparate impact approach seriously in disability-related misconduct cases via an individualized analysis of both the exclusionary effect of the conduct rule and whether it is sufficiently related to success on the job. Courts should examine closely whether the conduct rule in question—including the strictness of its application—is job-related and consistent with business necessity as applied to the plaintiff. If the plaintiff is unlikely to violate the rule in the future, if her misconduct is not serious in nature, and if her level of fault is low with respect to both the misconduct and not requesting a reasonable accommodation prospectively, terminating the plaintiff for violating the rule constitutes disparate impact discrimination. The plaintiff may have violated a neutral conduct rule, but the employer has violated the ADA.

Disciplines

Disability Law | Labor and Employment Law | Law

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