David B. Sacks

  • Email

(904) 758-8160 – Call for consultation

  • Home
  • Service Area
  • Practice Areas
    • Employment Discrimination
    • Sexual Harassment Florida
    • Retaliation
    • Wrongful Termination Lawyers Florida
    • Family & Medical Leave
    • Disability Benefits
    • Wages & Overtime
    • Personal Injury Attorney Jacksonville FL
  • Client Reviews
  • About David Sacks, PA
  • Contact Us
  • Blog
You are here: Home / Blog / Can I be fired for conduct that is caused by my disabling condition?

Can I be fired for conduct that is caused by my disabling condition?

April 30, 2017 By David Sacks

Getting fired because of disability-related misconduct is sufficient evidence that the firing was “because of” disability, but whether or not the firing is upheld depends first on whether it is related to alcohol or drugs, and second, how serious it is. It can be helpful to be able to show that others got lesser discipline for similar offenses, and/or that it was not a firing offense and could have been accommodated. Here’s some law on the topic:

Basing adverse action on the “attributes” of a disability is generally the same as basing the decision on the disability. Chandler v. Specialty Tires of America (Tennessee), Inc., 283 F.3d 818, 824 (6th Cir. 2002) (supervisor’s explanation that he fired plaintiff for overdosing, and not for her mental condition, raised a fact question as to unlawful discrimination); Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997) (immaterial that defendant claimed clerk fired for seizures, not epilepsy); Oszust v. Stone Container Corp., 2002 WL 193851, at *4-5 (S.D. Ohio 2002) (terminating employee for medical leave is direct evidence of discrimination); Benson v. E.I. Du Pont De Nemours & Co., 182 F. Supp. 2d 527, 532-533 (W.D. Va. 2002) (employer’s admission that it fired plaintiff based on the effect of a stroke on her work performance is enough to show that plaintiff was fired because of a disability).

Whether employers can take adverse action because of disability-based misconduct is a more difficult issue.

Courts generally permit such adverse action if the misconduct is related to alcohol or drug abuse. For an example of the different treatment accorded alcohol- and drug-related misconduct, see Mararri v. WCI Steel, Inc., 130 F.3d 1180, 1182-1183 (6th Cir. 1997) (termination proper; it was not based on disability but on testing positive for alcohol in violation of “last chance agreement”). See also Bailey v. Georgia-Pacific Corp., 176 F. Supp. 2d 3, 10 (D. Me. 2001), aff’d, 306 F.3d 1162 (1st Cir. 2002) (“Congress made explicit its intent ‘to allow employers to respond to addiction-related misconduct in a way that they cannot respond to other disability-related misconduct’”). But compare those cases to Mammone v. President and Fellows of Harvard College, 847 N.E.2d 276, 288 (Mass. 2006) (text of the state law does not support a holding that “the status-conduct dichotomy exists only in the contexts of alcoholism and illegal drug use”).

Courts may also permit such adverse action if the misconduct is sufficiently serious. See, e.g., Dark v. Curry County, 451 F.3d 1078, 1084 (9th Cir. 2006), cert. denied, 127 S. Ct. 1252 (2007); Reed v. Lepage Bakeries, Inc., 2000 WL 761626, at *8 (D. Me. 2000) (referring to “egregious or criminal” misconduct).

The EEOC apparently distinguishes between termination-level offenses and lesser ones. According to the EEOC, an employer does not have to excuse past misconduct that violates a uniformly applied conduct rule that is job-related and consistent with business necessity, but an employer must make reasonable accommodation to enable an otherwise qualified employee with a disability to meet that conduct standard in the future, except when the punishment for the violation is termination.

Courts have found that under state law an employer may terminate a person with a disability for “egregious misconduct,” but have also indicated that disability-related misconduct is not always entitled to no protection from relevant discrimination statutes. To the extent that such misconduct is not egregious and sufficiently inimical to the employer’s interest, it is entitled to protection.

Otherwise, conduct resulting from a disability is considered part of the disability, rather than a separate basis for termination, and may be protected.

Whether the plaintiff’s disability caused the misconduct may be a fact question and so a jury would have to sort it out. Also, allegations of misconduct may be merely a pretext for discrimination. That is especially true if it is the employer’s failure to accommodate that leads to the disability-related “misconduct.”

All in all, a real conundrum and something that would have to be worked out in the process of litigation.

For more information, visit our labor and employment law firm.

Filed Under: Blog

TESTIMONIALS:

David Sacks was my lawyer in a custody case many years ago. He treated me with respect and kindness. My children are grown now and I thank him every day for the effort and work he put into my case. He is a very trust worthy person and he has always had my respect throughout the years. ~ Cynthia
I am in final of the case, not allowed to explain details but David B. Sacks is an excellent Attorney, I am very satisfied with his services and professionalism! I highly recommend him. ~ Discrimination Client
I was able to obtain the best legal representation there was available when Mr. Sacks took over my employment case. Due to the nature of the case I had almost lost all hope. Fortunately Mr. Sacks took my case and with a realistic approach obtained all the information necesary to back up my legal petition. He and his office employees know what they are doing and deliver the best outcome possible. They are the best! - Employment Client
Last fall I found myself in a sad predicament; I had to replace my attorney who had originally handled my EEO case. I called/emailed/requested help through attorney personal websites, and the Florida Bar for a replacement within my short deadline. Over sixty attorneys either failed to respond or turned me down. I was than referred to Attorney David Sacks in Jacksonville and four months later this EEO matter was mediated and settled. If you are looking for an attorney who will tell you exactly what you should/should not expect, one that is open and honest, one that keeps you informed so that you always know where you stand, I whole heartedly recommend Mr. Sacks. I hope I never need another attorney, but if I do, I will be calling Mr. David Sacks. ~ Nancy Kineer-Luckey
David B. Sacks, PA - Jacksonville Attorney

About David B. Sacks, PA

Experienced Employment Lawyer in Jacksonville, Florida At the Law Office of David B. Sacks, PA, we provide people with straightforward legal advice and skilled representation in a variety of practice areas. Unlike other firms, we don't tell you what you want to hear, we tell you what you need to hear. Whatever your legal needs are, you can count on us to steer you toward success. Mr. Sacks was born in New York City, New York. He graduated with honors and obtained his Bachelor's degree in 1988 from North Texas State University. He received his Juris Doctorate in 1991 from University of the Pacific, McGeorge School of Law with Honors and Order of the Coif. He was admitted to both the Florida and California Bars in 1992. In 1994, he was admitted to practice in the U. S. District Court, Middle District of Florida. In 1995, … Read More »

The Law Office of David B. Sacks
P.O. Box 50159
Jacksonville, FL 32240

+1 (904) 758-8160 

Opening Hours: Mo-Fr 8:30-16:30

TESTIMONIALS

David is a hands-on attorney that takes the time to listen to client concerns. Before even hiring David, he spoke to me for at least 30 minutes via phone to determine if I had a case worth pursuing. David is very responsive to emails and phone calls and seems genuinely concerned with obtaining the outcome desired by his clients. He is genuine, will provide the pros and cons while evaluating the risks involved. I truly felt he was fighting for my best interest at all times. ~ Sheila, Jacksonville, FL

TESTIMONIALS

David and his firm could not have been any more helpful and supportive of me while I required his services. No matter when I contacted them, they responded back in a very timely fashion with excellent and reliable information. David’s professional advice has been extremely beneficial to the end results for my situation. ~ Dee McKrow, Jacksonville, FL

TESTIMONIALS

I've known Dave for 10 years. He represented me in a personal injury case and a divorce, both with excellent outcomes. He has advised me in a variety of matters and referred me to professionals in other fields. I have found him to be always warm, considerate and helpful, with clear opinions, simple explanations and a good understanding of all the choices in any situation. I am lucky to have Dave in my life. ~ Paul Mellion, Jacksonville, FL

  • Youtube
  • Facebook
  • Linkedin
  • Twitter
  • Google My Business

TESTIMONIALS

I am the fleet manager and Captain for a corporation which owns 2 large yachts in Florida. We employ as many as 35 people sometimes. I need Dave. There's a lot of commotion here and a few times it's come to 'legal.' His advice is sharp, correct, intelligent, and very knowledgeable of Florida employment law. His handling of my situations was not just 'good' but a 'great' 'bang for my buck. ~ Ennals Berl, West Palm Beach, FL

  • Sexual Harassment Florida
  • Jacksonville Employment Lawyer
  • Employment Lawyer Florida
  • Wrongful Termination Lawyers Florida
  • Personal Injury Attorney Jacksonville FL
  • Privacy Policy
  • Terms of Service
  • Sitemap

Copyright © 2021 The Law Office of David B. Sacks | Website Management: Digital Mark Company
DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.