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Yelling at the Owner Was Inappropriate
Employee Must Prove That Termination for Insubordination Was Pretext
Employers Can Discipline Disabled Employees
An employer may not terminate a
disabled employee for requesting an accommodation under the ADA.
However, if that employee also is rude and insulting, the employer
can discharge the employee for his insubordinate behavior.
[Creating HR Policies or Employee Handbook?]
The
Americans with Disabilities Act
(ADA) requires employers with 15 or more employees to accommodate
disabled employees. Typical accommodations include providing
assistive devices or making other accommodations in the workplace to
allow the employee to perform his job. This duty to accommodate,
however, does not extend to allowing disabled employees to be
abusive or rude. A decision by the Eighth Circuit Court of
Appeals, in Kiel v. Select Artificials, Inc., No. 97-2433 (3/4/99),
shows that an employer may discipline and even terminate a disabled
employee as long as the discipline is not related to the disability.
Yelling at the
Owner Was Inappropriate
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In this case, a deaf employee
worked for an organization for two years as a billing clerk. On
several occasions, he requested a telecommunications device (TDD) to
allow him to make business and personal calls. The company refused
because, in the owners’ opinion, he did not need to make calls to
clients. Instead, the company assigned the minimal calls required by
the position to his supervisor. The employee also requested a
sign-language interpreter for company meetings and social events.
The company generally refused these requests as not being necessary
to perform the job, although on one occasion it did provide an
interpreter for a required training session.
The employee’s troubles began when
one of the owners of the company asked him about using the
photocopier. The employee informed the owner that he had used it to
photocopy a letter requesting that the company buy a TDD for his
use. The owner informed him the company would not purchase the TDD.
In response and in the presence of other employees, the employee
shouted at the owner, calling her selfish, slammed his desk drawer,
and, as she walked away, remarked on her recent automobile purchase.
Even though the employee later apologized for his actions, the
owners fired him for insubordination. The employee filed an ADA
claim, alleging discriminatory discharge, retaliatory discharge, and
failure to accommodate. The lower court ruled against the employee,
and he appealed to the Eighth Circuit Court of Appeals. A panel of
the Eighth Circuit reversed the lower court’s decision and ruled
that a jury should hear the employee’s claims. At the employer’s
request, the entire Eighth Circuit agreed to review the claims and
affirmed the lower court’s decision in favor of the employer.
Employee Must Prove That Termination for Insubordination Was Pretext
To prove that the employee was
terminated because of his disability, the full panel of the Eighth
Circuit pointed out that he must show that the employer’s
nondiscriminatory reason given for the termination was a pretext (or
false) reason for the firing. However, in this case, the employee
did not present any evidence that the employer did not fire him for
insubordination. According to the court, he did not point to any
conduct or statements by the owners that would indicate that the
insubordination was not the real reason for the termination, and he
did not show that he was disciplined more harshly than employees who
are not disabled for similar offenses. Therefore, the court found
that there was no evidence of discriminatory motive by the
employers.
In addressing the retaliation
claim, the court indicated that the employee must show that the
termination was "causally linked" to some protected conduct. In this
case, the employee would have to show that his termination was the
direct result of his request for accommodation. Again, the court
found that the employee did not present any evidence of this link.
The fact that he had requested a TDD on several occasions prior to
his termination and had never been disciplined tends to show that
the owners did not retaliate.
Finally, the court turned to the
employee’s claim that the employer did not accommodate his
disability. The court looked to the
ADA regulations, which indicate
that an employer must provide an effective accommodation, not the
one preferred by the employee, and give the employer "the ultimate
discretion" to choose between effective accommodations. In this
case, the court determined that the employer had provided a
reasonable accommodation already by restructuring the employee’s job
so that he did not have to use the telephone and by providing an
interpreter for a training session.
Employers Can Discipline Disabled
Employees
The court’s message is clear: You
may discipline disabled employees as long as you are not doing so
because of the disability and the discipline is consistently
implemented. In addition, courts generally will uphold the
discipline, as long as there is not any evidence of discrimination.
In this case, the court specifically rejected the employee’s
argument that termination was too severe for his behavior, noting
that "in the absence of any evidence of discriminatory intent,"
courts should not "sit in judgment of management’s decisions." The
case also emphasizes that an employer does not have to provide every
accommodation a disabled employee requests, only that which allows
the employee to perform the job.
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