ADA Doesn’t Protect Being a Jerk

In recent years, employers have faced a host of cases where appellate courts have held that employees who engage in misconduct that was caused by a disability are protected under the Americans with Disabilities Act. For example, in EEOC v. Walgreens, pharmacy retailing giant Walgreen Co. let an employee go for violating its strictpolicy that employees not “graze” (eat Walgreen merchandise without paying for it first).

In that case, the employee who was diabetic, alleged that she had opened a bag of chips and eaten some while working in the check stand — violating the policy because she could not ring herself up — because she was having problems with her blood sugar and could not reach anyone to relieve her or ring her up.

Walgreen moved for summary judgment, but the Northern District of California found the case should go to trial. While the plaintiff admittedly violated a neutral policy, the court found that because her disability prompted the conduct, there was a question as towhether Walgreen should have tried to accommodate her violation of the “no grazing” rule. 

Race Bias Claim Based on Employee Being ‘Too Black’

Esma Etienne worked as a waitress and bartender at Spanish Lake Truck & Casino Plaza in New Iberia, Louisiana, for over three years when her application for a promotion to a managerial position was denied. Etienne claimed the casino filled the position with a less-qualified former employee who is white, and she filed a lawsuit claiming that she was passed over for the position on the basis of both her race and her dark color.

The U.S. District Court for the Western District of Louisiana granted summary judgment for Spanish Lake, finding that Etienne failed to raise a factual dispute that she was clearly better qualified for the position, but the U.S. Court of Appeals for the 5th Circuit reversed the decision. 

The appellate court held that evidence from the employer’s former manager stating that the casino’s general manager wouldn’t permit “a dark skinned black person” to handle money at the casino and told her that he thought “Etienne was too black to do various tasks at the casino” was direct evidence that race was a basis in the employment decision. Etienne v. Spanish Lake Truck & Casino Plaza, LLC, No. 14-30026(Feb. 2, 2015).

IMPACT:Discrimination cases turn on the employer’s motive for taking an employment action, like failing to hire or firing an employee. The employee must prove that the employer’s bias against people in the employee’s protected class motivated the employer to take the adverse action. The employer, on the other hand, typically states that it took the adverse action for legitimate business reasons.

Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. To comment, email

That decision conformed with Dark v. Curry County. In Dark, the employee drove an employer-owned vehicle after experiencing an aura that preceded an epileptic seizure, losing control of the vehicle and imperiling himself, the public and his co-worker/passenger, who took control of the vehicle and avoided an accident. Darkgot past summary judgment, too.

Based on this line of cases, employers in the U.S. Court of Appeals for the 9th Circuit have faced claims that all types of misconduct and unacceptable behavior are caused by disabilities. They include plaintiffs who claim they are constantly late for work because of obsessive/compulsive disorder and plaintiffs caught sleeping on the job who point to narcolepsy. Counsel for plaintiffs has gotten pretty creative in tying misconduct to a disability. But it appears they have pushed the envelope too far.

On Aug. 14, 2014, the 9thCircuit issued its decision in Weaving v. City of Hillsboro.  Matthew Weaving, a police officer, alleged that his ADHD caused conflicts with his co-workers, rendering him incapable of the major life activities of working and interacting with others. The city of Hillsboro, Oregon, fired Weaving after investigating numerous complaints that he was arrogant, belittled employees and called them derogatory names — “salad eater” for officers he found “weak” — and publicly rebuked his subordinates for mistakes. All because of his ADHD, Weaving claimed.

The district court held a trial, and a jury found in favor of Weaving. The award by the court was more than $700,000. In a breath of fresh air, the 9th Circuit reversed. It found Weaving was not limited in a major life activity, despite his admitted conflicts with co-workers.

The 9thCircuit pointed out that Weaving, a very skilled police officer, had repeatedly been promoted, so he was not limited in working. It also distinguished other cases where it found that “interacting with others,” was a major life activity. In those cases, the court explained, the employees “were so severely impaired that they were essentially housebound.”  

The court held that failing to “get along” with others is not the same as “interacting with others.” Weaving, despite his rude behavior, was able to engage in social interactions and communicate with others. The 9th Circuit wrote: “To hold otherwise would be to expose to potential ADA liability employers who take adverse actions against ill-tempered employees who create a hostile workplace environment for the colleagues.”

Weaving is a great case for employers and for employees. It protects employees who suffer from severe disorders like agoraphobia but not employees whose conditions lead them to disrupt the workplace and create discord. Thanks to a perhaps overeager plaintiff’s lawyer, the law on this subject just got a bit better for employers.