Employees frequently seek to explain away their job-related misdeeds by claiming that they are simply symptoms of their disabilities. While that may be true, it generally does not matter for the reasons that a federal appeals court cogently explained in the following case.
George Clark, an insulin-dependent Type II diabetic, worked as a personnel manager for Champion National Security, Inc., a security staffing company. In addition to handling recruitment, hiring, discipline and terminations, Clark oversaw training on company policies, including the “alertness policy” which provided: “[S]leeping or giving the appearance of sleeping at any time while on duty or on the client’s property (including breaks) is considered a terminable offense.”
At one point, Clark’s manager Paul Bents heard that Clark was witnessed going into his office, closing the door and snoring loudly enough to be heard through the door. The next month, Bents received an anonymous picture of Clark appearing to be asleep at his desk. Bents declined to take any action at that time due to the unknown identity of the reporting employee and the lack of corroborating evidence.
Some months later, an employee reported to Bents that Clark was sleeping at his desk. Bents went to the office and snapped a picture of Clark in full repose. Clark then woke up and claimed that he did not remember coming to work that morning. He then said that he must have experienced a diabetic emergency and was going to the hospital.
Bents emailed the snapshot to Corporate Human Resources Director Jeff Mays along with the other employee’s statement of what he saw. Mays immediately contacted Clark, who was still at the emergency room, and fired him for violating the alertness policy. Clark protested that he was not sleeping and instead had passed out due to low blood sugar, but Mays stood firm and confirmed the termination decision.
Clark sued under the Americans with Disabilities Act (ADA), claiming that he was discriminated against because of his disability and that he was denied an opportunity to seek accommodation by being fired so abruptly. After the lower court dismissed his claims, Clark appealed to the Fifth Circuit Court of Appeals.
If You Snooze, You Lose
The Fifth Circuit upheld the decision to dismiss Clark’s claims. As for the discrimination claim, the court explained that a claimant under the ADA has to demonstrate that he is “qualified” for the job. To be qualified means being able to perform the essential functions of the job with or without reasonable accommodation. Clark clearly could not perform without accommodation since, as the court so aptly explained, “maintaining consciousness is a basic element of any job.”
Clark failed to show that he could perform the essential job functions with accommodation because he did not identify any suitable accommodations that would have allowed him to be successful. The Appeals Court reasoned quite succinctly that this was “probably because interviewing, hiring, training, disciplining, and terminating security guards requires him to be awake.” Since Clark could not stay awake with or without accommodation, he was not a qualified individual and he therefore could not invoke the protections of the ADA.
The Court also dismissed Clark’s claim that he never had a chance to request an accommodation or engage in an interactive process because he was summarily terminated. They explained that he had plenty of opportunities to request an accommodation for his disability-induced sleeping but failed to do so until he was terminated. The Court concluded that this sort of “after-the-fact, retroactive exception” to a critical work policy is not a proper accommodation request under the ADA.
As this case demonstrates, when an employee is terminated for misconduct, the ADA does not require the termination to be rescinded just because the employee finally gets around to explaining that the misconduct and the disability are related.
Of course, the employer should be sure that they had no previous knowledge of this relationship, and it always is reasonable to listen to the employee and consider whether a second chance is warranted. Otherwise, the employer should not lose any sleep over the termination decision.