Employers are often — perhaps with good reason– hesitant to take drastic disciplinary action against a disabled employee for fear that the employee will sue for discrimination. While the Americans with Disability Act (ADA) and other similar state and local laws prohibit unfair treatment of the disabled, the laws still permit employers to take justified action when necessary.
This truth was borne out by a recent appellate decision involving an employee with Asperger’s syndrome who worked for the New York Fire Department. Krasner v. City of New York (2nd Cir. Aug. 28, 2014). The employee was fired and he claimed the termination was discriminatory. But the employer was able to demonstrate that, in fact, its decision was the result of serious misconduct including insubordination, foul language, and threats of serious harm to his coworkers. The Court found that even if the conduct was in part the result of the employee’s disability, under these specific facts the employer could not reasonably be expected to accommodate the inappropriate conduct and the conduct formed a legitimate, non-discriminatory explanation for the termination.
So- how did the employer win its case? By relying on a well-documented personnel file, of course. Contemporaneous, detailed and fair documentation is the proof you need to demonstrate that your decision was based on the employee’s conduct, not his disability. Employers should contact counsel if they need help drafting discipline forms or training supervisors on how to effectively discipline employees.