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.

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