UNDERSTANDING TERMINATIONS FOR "DISABILITY-CAUSED MISCONDUCT" AS FAILURES TO PROVIDE REASONABLE ACCOMMODATION.

• Author: Verdichizzi, Michael S.

INTRODUCTION

Among those impairments that may be considered "disabilities" under the law of employment discrimination, mental conditions are nnique in that they are usually invisible. (1) An employee with a mental condition may spend years at the same job without her coworkers becoming aware that she has a disability--unlike, perhaps, cases involving a hearing-impaired person, or someone who requires the use of a wheelchair. (2) Ailments such as bipolar disorder, post-traumatic stress disorder (PTSD), or obsessive-compulsive disorder (OCD) often manifest themselves only in behaviors likely considered by peers to be odd or eccentric. (3) Often these behaviors are considered violations of workplace conduct rules, (4) which are in some cases designed to screen out individuals with mental conditions. (5) Further, the invisible nature of mental conditions can make them difficult for other individuals to understand or empathize with. This lack of understanding among the public, coupled with the growing belief that mental conditions can lead to mass shootings or other acts of violence, contributes to the formation of harmful stereotypes about people who experience mental conditions. (6)

The Americans with Disabilities Act (ADA) is the primary legal mechanism for protecting private-sector employees who experience a disability, whether mental or physical. (7) Given that mental conditions often manifest themselves only in unusual, or perhaps disruptive, behaviors, what obligations, if any, does the ADA impose on employers when an employee's misconduct is caused by a known mental disability? As the Eleventh Circuit recently acknowledged, circuits are split on this issue. (8) A majority of courts have concluded that the violation of a workplace conduct standard, so long as the standard is applied even-handedly and out of business necessity, always constitutes a lawful basis for termination.'' By contrast, the Second, (10) Ninth, (11) and Tenth (12) Circuit Courts of Appeals, as well as at least one district court outside those circuits, (13) treat disability-caused-misconduct as "part and parcel" (14) of the underlying disability, with the result that an employer is liable for employment discrimination if she fires an employee on the basis of misconduct which the employer knows was an actual result of the employee's disability.

The Note proceeds as follows. Part I provides a primer on the sorts of disability discrimination the ADA prohibits, with a special focus on the three types of claims one may bring under the act: disparate treatment, disparate impact, and failure to accommodate. Part II explores the current state of the misconduct issue in the disability discrimination context and demonstrates the circuit split by way of case analyses. Part III presents the principal argument of this Note, that uncontroversial canons of statutory interpretation demonstrate the erroneousness of the majority view, that the majority view hinders the ADA's objective of equal opportunity for individuals with disabilities, and that the minority view should be adopted under a failure to accommodate theory of discrimination liability.

1. DISABILITY DISCRIMINATION UNDER THE ADA

   The general rule of the ADA is that no employer (15) "shall discriminate against a qualified individual on the basis of disability" in regard to hiring, discharge, or other terms, conditions, or privileges of employment."' Rather than list impairments that per se constitute disabilities for antidiscrimination purposes, the ADA defines "disability" as a physical or mental impairment that "substantially limits" one or more major life activities. (17) In creating this test of substantial limitation, rather than listing medical diagnoses that "count" as a disability, the drafters of the ADA intended to leave it to courts to determine, on a case-by-case basis, whether a particular plaintiff is a person with a disability. (18) This structure transforms the inquiry of whether someone has a disability from a factual question to a legal one. (19)

   As a threshold matter, a plaintiff claiming disability discrimination under the ADA must show that she is a "qualified individual," meaning she "can perform the essential functions" of the position she holds or desires, "with or without reasonable accommodation." (20) This showing is required not because it tends to show that the employer has discriminated against the employee, but because the ADA prohibits discrimination only where the victim is a "qualified individual[]." (21) For instance, imagine that a manager fires an employee with a disability because he holds a personal animosity toward the disabled. Here, in a factual sense, discrimination has occurred. However, if the employee failed to show that she was "qualified" under the meaning of [section] 12111(8), the employer would incur no liability, because the person he discriminated against was not a member of the relevant protected class. (22) This nuance makes the ADA unique among antidiscrimination statutes. For example, in a Title VII claim, plaintiffs belong to a protected class by virtue of the same personal quality-race, sex, or sexual identity--upon which the Act prohibits discrimination. (23) By contrast, ADA plaintiffs are protected from disability discrimination only insofar as they are "qualified," even though the ADA prohibits discrimination based on disability status; in other words, the ADA declines to protect everyone who can claim membership in the very class that constitutes an unlawful basis for discrimination.

   What does it mean, then, to "discriminate" against a qualified individual on the basis of disability? The section following the ADA's "general rule" is titled "construction" and lists, non-exhaustively, seven acts or omissions "include [d]" in the term "discriminate against a qualified individual on the basis of disability." (24) Together the seven acts and omissions have come to form three distinct theories of discrimination which the ADA prohibits: disparate treatment, disparate impact, and failure to accommodate. (25)

   The theory of discrimination as "disparate treatment" captures what lay people probably mean when they use the term "discrimination": unfairly treating an individual or group of individuals differently than others. (21) ' Simply put, disparate treatment is intentional discrimination. (27) Disparate treatment occurs when an employee's disability motivates the adverse employment action taken against her. Thus, the plaintiff must show that the forbidden consideration, disability, was a "but-for" cause of the adverse action. (28) Because motive can be difficult to prove in discrimination cases, the Supreme Court in McDonnell Douglas Corp. v. Green established a burden-shifting framework by which a Title VII or ADA plaintiff may prove disparate treatment by way of circumstantial evidence. (29) The McDonnell Douglas framework partitions the disparate treatment analysis into three parts. First, the plaintiff must establish a "prima facie" case of disparate treatment, by showing that (a) she has a disability; (b) she was qualified for the job in question; and (c) an adverse employment decision was made under circumstances which give rise to an inference of unlawful discrimination. (30) If the prima facie case is established, a presumption of discrimination arises, and the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. (31) Finally, if the employer articulates a legitimate reason, the burden shifts back to the plaintiff, who must then show that the articulated reason was pretextual, i.e., an ad hoc cover-up for the true, discriminatory motive. (32)

   Next, whereas disparate treatment addresses intentional discrimination, the disparate impact theory addresses the existence of policies, standards, or other workplace conditions that have a discriminatory effect, regardless of whether their formulation involved discriminatory motive. (33) In the context of the enactment of the Rehabilitation Act, the Supreme Court has noted that "[d]iscrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference--of benign neglect." (31) Thus, 42 U.S.C. [section] 12112(b) specifies that disability discrimination includes "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability" and "utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability." (35) In effect, this means that an employer can incur ADA liability even when they do not intend to discriminate. In order to prevail on a disparate impact claim, a plaintiff need only show that a facially neutral employment practice or policy had an adverse effect on her because of her disability, at which point it becomes the employer's burden to show that the practice in question is job-related and consistent with business necessity. (36) For example, imagine that a parcel service categorically rejects all applicants for a driving position if the applicant's hearing abilities fail to meet the service's prescribed standards. (17) Although the parcel service, in formulating this policy, very probably had innocent intentions, the qualification standard is discriminatory on its face against people with hearing disabilities. (38) If the parcel service could not show that the hearing standards were job-related and consistent with business necessity, it would be liable for discrimination under a disparate impact theory. (39)

   The final theory of discrimination, failure to accommodate, is unique in that it imposes liability for omissions rather than acts. Disparate treatment requires an adverse employment decision, and disparate impact requires there to be a policy, standard, or...