ADA Does Not Protect Insubordinate Employees

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.

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

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.