The ADA's Tough Standards
We've all functioned under the ADA for long enough to know that it is a tough task master for employers. Above all, the Act requires employers to go through a specific process prior to terminating an ADA-eligible employee. Any foreshortening of the process, any jumping to conclusions, no matter how seemingly well reasoned or logical, are likely to meet with failure in the courts.
How would you handle these situations:
Case One: You have an equipment operator who has a history of epilepsy. One day he experiences an "aura" prior to work - a strong indication of a pending seizure. Instead of reporting the aura to his supervisor, he goes about his regular job. He has a seizure while driving a pick up truck. Fortunately, he is driving slowly. A passenger is able to gain control of the vehicle.
Do you fire him for cause? Do you fire him because he is a danger to himself and others?
Or do you try to accommodate his seizure disability?
Case Two: You hire a service technician to install telephone lines in residential homes. On his application, he denies any criminal history. Three months into the job, you discover that 15 years ago, he was acquitted of attempted murder by reason of insanity. He spent two and a half years in a mental hospital.
Do you terminate him immediately for misrepresenting his history and out of concern for your customers? Or should you allow him to continue working?
Seizure of the Day
Let's begin with the equipment operator suffering from epilepsy: Dark v. Curry County. After the incident, the county referred the employee to a neurologist, who determined that the uncontrolled epilepsy comprised an immediate threat of harm to the employee and others. So the county terminated him. He was fired not for his wilful misconduct (failing to report the aura), but for the future risk inherent in his disability.
Therein lies the rub. Because the reason for the termination was the disability itself, the county had an obligation to go through the ADA accommodation process:
Can the employee perform the essential functions of the job with reasonable accommodation?
If not, can he be accommodated by taking on other functions for which he is qualified (and which do not entail the operation of heavy equipment)?
If not, how about accommodating him with medical leave, so that he has time to resolve the medication issues that resulted in a seizure?
By failing to follow the ADA procedure, the county violated the employee's rights under the ADA. Even if they had terminated him solely for his wilful misconduct, it's likely that some accommodation process would have been required. Judge O'Scannlain points out that "conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for the termination." In other words, if you want to terminate someone because of their disability, you must first explore any and all "reasonable accommodations." The judge remanded the case back to a lower court for reconsideration.
NOTE: We discuss another ADA case involving a mental disability here.
A Troubled Past
Our other case comes from last year: Joshua Liam Josephs v. Pacific Bell. Josephs was hired in 1997. On his job application, he denied any criminal history. After three months on the job, he had the full support of his immediate supervisor, even after a criminal background check revealed the "not guilty by reason of insanity" plea and the subsequent hospitalization. His supervisor saw no reason for firing him. Nonetheless, higher-up managers at Pac Bell decided to terminate Josephs. They feared that given his history of a mental disability, he might assault one of their customers.
A jury found that the company had discriminated against Josephs and the appeals court upheld the verdict (not without a stinging dissent by one judge who focuses on the potential liability for the employer). With over a decade of relative stability between the troubled past and his Pac Bell employment, Josephs was well beyond the "immediate threat" standard of the ADA. He even submitted as evidence an autobiography written during his hospitalization, in which he confronted the demons of his illness and documented his efforts to move on. By ADA standards, he proved his case.
The Rock and the Hard Place
The ADA is a formidable piece of legislation designed to end discrimination for the physically and mentally handicapped. It often places employers between the proverbial rock (the rights of the disabled) and a hard place (potential liability exposures). When confronted with ADA issues, employers need to understand the substantial burden of proof they face as they make decisions pertaining to the law. I highly recommend Judge O'Scannlain's meticulously reasoned opinion as a guideline for employer decision-making. Managers tend to take action in the heat of the moment. Once a case hits the courts, everything is reduced to an agonizingly slow pace, with every action, every word of every document, carefully scrutinized. All of which serves to remind us that under the ADA, process is paramount: take the time to walk (not run!) through the process and document every step. It might seem like a lot of work at the time, but it's a lot quicker than reconstructing every decision under the glaring lights of a courtroom.