Wednesday, November 3, 2010

Disability and Bad Behavior in the Workplace: Where is the Line Between Disability Protection and Employer Protection?

The Americans with Disabilities Act ("ADA") is supposed to protected individuals with both real and perceived disabilities. There are many, many disabilities that qualify under the ADA and some of these disabilities have certain behavioral side effects that can prove to be troublesome in the workplace which places employers in a tough situation. For example, if an employee has been diagnosed with a mental disability such as bipolar disorder or with severe depression and anxiety and has been the subject of several co-worker complaints or had an outburst of sorts, an employer's inclination is to take an adverse employment action of suspension or even termination. However, the employee's belonging to a protected class presents a problem for human resources.

Because the employee is in a protected class, employers need to be extra cautious before acting. Careful examination of policies and how other comparable situations were dealt with need to be analyzed to avoid disparate treatment claims. Another analysis is whether there is an issue of reasonable accommodation. If the employee has made you aware of the behavioral side effects and indicated the need for some sort of accommodation to avoid these types of conflict, then a claim may arise based upon the failure to accommodate.

A reading of court cases on this issues shows that employers will not be found in violation of disability discrimination if the adverse employment action is based upon the behavior and not the disability. It may logically follow that behavior stems from qualified disability, therefore, adverse employment action is because of qualified disability, but so long as employers only based their decision upon the behavior and not the disability, they have a defense and legitimate non-discriminatory reason.

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