A 911 operator whose narcolepsy made him fall asleep on the job. An employee with bipolar disorder who responded to a performance improvement plan by hurling it across the room and shouting profanities. These examples, from the article “My Disability Made Me Do It” by Joanne Deschenaux (June 29, 2011) (available at http://www.shrm.org/publications), raise the question of the extent to which an employer is required to accommodate employee misconduct caused by a disability. Is the conduct resulting from a disability part of the disability, or does it constitute a separate basis for termination?
This article examines a recent case involving a Walgreens employee who claimed her diabetic condition caused her to consume a snack without first paying for the item. It also examines New Jersey and federal precedent concerning when an employee’s disability-induced misconduct constitutes a legitimate basis for termination.
Equal Employment Opportunity Commission v. Walgreen Co., Case No. 11-cv-04470-WHO (N.D. Cal. Apr. 11, 2014), involved an action brought on behalf of a Walgreens employee named Josephina Hernandez which alleged a violation of the Americans with Disabilities Act (ADA). Hernandez suffers from Type II diabetes and stated that, due to this condition, she was required to eat a bag of potato chips without first paying for them. This action was an undisputed violation of Walgreens’ policy and, as a result, her employment was terminated. In response to Walgreens’ motion for summary judgment, the court held that whether it was a “business necessity” to treat Hernandez in the same manner as nondisabled employees was a question of fact for the jury.
The facts of the case were as follows: while returning items in a shopping cart to the store’s shelves, Hernandez began shaking and sweating due to low blood sugar. Because she did not have any candy with her she, took a bag of potato chips from the cart and ate a few of them. In so doing, Hernandez violated Walgreens’ “anti-grazing” policy. This policy, which Walgreens implemented to stem its estimated $350 million in annual losses from employee theft, prohibited employees from eating food merchandise without paying for it first.
Hernandez testified at her deposition that, once she started feeling better, she attempted to pay for the chips but no one was there to accept payment. She then returned to restocking items. When the assistant store manager found the opened bag and learned that Hernandez was the culprit, she reported this fact to the store manager. Hernandez subsequently told a Walgreens loss control supervisor that, due to the fact that her “sugar was low,” she did not have time to pay for the chips. She also claimed to have eventually paid for the chips, although Walgreens stated that it had no record of such a transaction. Due to her admitted violation of the anti-grazing policy, Hernandez was suspended and then terminated.
Hernandez, who had worked for Walgreens for 18 years, acknowledged that she was aware of the company’s anti-grazing policy as well the fact that employees would be terminated for violating that policy. It was similarly undisputed that Walgreens had “‘consistently’ terminated any employee for theft regardless of the employee’s rank, employment history, or the value of the items taken.”
The EEOC alleged that Walgreens had violated the ADA. The court noted that the ADA required an employer to reasonably accommodate its employee’s disability unless it could “demonstrate that the accommodation would impose an undue hardship on the operation of the [employer's] business….” 42 U.S.C. § 12112(b)(5)(A). It was undisputed that Walgreens was aware of Hernandez’s condition and, in fact, had granted her certain accommodations, such as permitting her to carry candy, keep insulin in the break room refrigerator and take additional breaks to test her blood sugar or to eat.
In support of its motion, Walgreens argued that the EEOC’s own guidelines provided that “[a]n employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity…[e.g.,] violence, threats of violence, stealing, or destruction of property.” Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Question No. 35(available at http://www.eeoc.gov/policy/docs). These same guidelines state 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.” The court noted that, given that Hernandez was “suffering a hypoglycemic attack” and had testified that taking the chips was required due her medical condition, Walgreens had not shown that its action was “‘consistent with business necessity….’” The court held that “whether it was a business necessity to treat Hernandez the same as other employees who had been fired under the anti-grazing policy when Hernandez claims taking the chips was necessitated by her medical condition is a question of fact for the jury.”
In reliance on Humphrey v. Mem’l Hosp. Ass’n, 39 F.3d 1128 (9th Cir. 2001), the court in EEOC v. Walgreen Co. stated that, “‘with a few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.’” In contrast, under New Jersey law, an employee’s egregious or criminal conduct—even if resulting from a disability—constitutes a legitimate basis for termination. For example, in Barbera v. DiMartino, 305 N.J. Super. 617 (App. Div. 1997), certif. denied, 153 N.J. 213 (1998), the plaintiff was a former court administrator who was terminated after he assaulted his supervisor. The undisputed medical evidence was that the incident was the product of a temporary psychotic episode and that, less than a year later, “the causative psychiatric condition ha[d] been treated and cured,” with no indication that he would suffer a similar episode in the future. Although the Barbera panel accepted that the plaintiff’s psychotic episode constituted a disability under the Law Against Discrimination (LAD), and that the temporary mental disability precipitated the assault, it agreed with the lower court that, as a matter of law, the employee’s conduct was not protected by the LAD.
The court in Barbera noted that the LAD did not “preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standards,” N.J.S.A. 10:5-2.1, and that therefore, “by its express language,” the LAD did not prevent adverse employment treatment premised upon the employee’s conduct. The court also examined the precedent under federal law and noted that the overwhelming majority of courts have held that “federal laws are intended to prevent discrimination premised upon a handicap or disability, not upon egregious or criminal conduct even if such conduct results from the handicap or disability.” In support of this proposition, the court cited to precedent in the First Circuit, Leary v. Dalton, 58 F.3d 748, 753 (1st Cir. 1995); Fourth Circuit, Little v. FBI, 1 F.3d 255, 259 (4th Cir. 1993); Sixth Circuit, Maddox v. Univ. of Tenn., 62 F.3d 843, 847 (6th Cir. 1995); Eighth Circuit, Harris v. Polk County, Iowa, 103 F.3d 696, 697 (8th Cir. 1996); and Tenth Circuit, Williams v. Widnall, 79 F.3d 1003, 1007 (10th Cir. 1996).
The Barbera court therefore agreed with the “federal majority view that employers subject to laws protecting the handicapped and disabled nonetheless should be able to take appropriate action on account of egregious or criminal conduct of an employee, regardless or whether the employee’s disability contributed to the conduct.”
In an unpublished opinion, another panel applied the rationale in Barbera and found that an employee who, allegedly due to an epileptic condition, engaged in abusive behavior in the workplace and was subsequently arrested and imprisoned for several days after a violent domestic dispute was not entitled to protection under the LAD. See Pichler v. Jersey Elevator Co., No. A-0853-10T2 (App. Div. April 5, 2012). In reliance on Barbera, the panel in Pichler found that “conduct that is criminal or quasi-criminal in nature, despite its connection with a protected condition, need not be accorded special treatment under the LAD.” Accordingly, the panel affirmed the lower court’s order granting summary judgment to the employer.
The EEOC v. Walgreen Co. holding represents the minority view that misconduct related to a disability is generally considered to be a part of the disability and therefore may not constitute a basis for termination. In contrast, the majority view and the law in New Jersey is that an employer may terminate or otherwise discipline an employee whose misconduct disrupts the workplace, even if that misconduct was caused by a disability. •
Moskowitz is an associate with Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins in Springfield. He focuses his practice on employment law, in particular, disability, discrimination, harassment and whistleblower claims.