Congratulations to D’Andrea Latham, PHR

In Harkey’s case, the Fifth Circuit held that the principle outlined in Hamilton and Seaman applied. Regardless of why she did it, Harkey’s behavior in entering a male employee’s hotel room on a business trip while not fully clothed and getting into his bed was inappropriate and unprofessional. Even if her medical condition that results in sleepwalking was the reason for her behavior, “[t]he ADA does not give employees license to act with impunity.” Id. Harkey’s behavior gave NextGen reason to terminate her, and the court held that the ADA was no barrier to that termination. Id. Therefore, in answering the dispositive question noted above, the court determined that Harkey could not show that she was fired because of her sleepwalking disorder. She was in fact fired because of her actions while sleepwalking. Id.

Is a Disabled Employee’s Misconduct Ever Protected by the ADA?

Harkey’s case is illustrative of a foundational principle of the ADA. An employee’s disability does not excuse the employee’s misconduct.

The United States Court of Appeals for the Sixth Circuit also recently addressed this issue when a school district terminated a teacher for using marijuana and for inappropriate communications “with students after being placed on administrative leave and specifically instructed not to discuss her employment or related matters with students.” Lockhart v. Marietta City Schools, 2021 U.S. App. LEXIS 30991 at *29 (6th Cir. Oct. 15, 2021). The teacher argued that her diagnosed “severely limiting mental-condition” caused her behavior and so terminating her for such behavior was tantamount to terminating her because of a disability. Id. at *26, *29. The Sixth Circuit disagreed as follows: An employer may not rightfully fire an employee for disabilityrelated conduct that is not related to work performance and does not violate some workplace or societal rule. Rather, an employer should tolerate eccentric or unusual conduct caused by the employee's mental disability, so long as the employee can satisfactorily perform the essential functions of his job.

However, an employer may legitimately fire an employee for conduct, even conduct that occurs because of a disability, if that conduct disqualifies the employee from his or her job.

Id. at *29 (internal citations omitted; emphasis added). Additionally, the EEOC recognized this principle when it noted that “[a] n employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability” and “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA (2002).

Therefore, employers should not hesitate to enforce workplace rules and to discipline, even up to termination, employees with disabilities who violate those rules regardless of whether a disability may have caused the misconduct.

Geoffrey A. Lindley, Attorney

glindley@raineykizer.com Rainey Kizer Reviere & Bell PLC www.raineykizer.com

2022

Congratulations to

D’Andrea Latham on Passing Her PHR Exam!

D’Andrea is a native of Grenada, MS, and proud alumna of Mississippi State University where she earned her undergraduate degree in Business Administration and later pursued her Master of Business Administration at Delta State University. She has an established career as an HR Professional with experience in Affirmative Action Compliance, Benefits Administration, and Employee Relations. D’Andrea is currently a Contract Compliance Manager with International Paper in Memphis, TN. She also serves on the College of Business Management & Information Systems Advisory Board at Mississippi State University.