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Separate the ‘conduct’ from the disability

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Some disabled employees have the mistaken notion that their disabilities give them a pass that excuses unacceptable behavior. Those with drug or alcohol abuse problems, or who have certain psychiatric disorders, often believe they’re immune from discipline.

However, there is no duty to accommodate what is essentially conduct. For example, employers don’t have to tolerate an alcoholic who shows up at work disheveled and reeking of alcohol or someone with a mental disorder who threatens to harm co-workers.

Recent case: Dr. Philip Bodenstab was fired from his position as an anesthesiologist at the Cook County Hospital after he telephoned a friend in Seattle and made threats. The friend said Bodenstab told her he had recently discovered a cancerous lesion on his lip and was going to the Mayo Clinic to see whether the cancer had spread. Then he allegedly told her that if it had spread, he was going to kill his supervisor and several of the other doctors at the hospital. He added that he knew he might die in the ensuing battle with police.

Disturbed by the conversation, the friend called the Chicago police, who alerted Bodenstab’s supervisor and colleagues. Eventually, Bodenstab received inpatient psychiatric care. Even so, the hospital fired him for threatening his co-workers.

He sued, alleging that the hospital had refused to accommodate his psychiatric disability.

The 7th Circuit Court of Appeals disagreed. It said that employers are required to accommodate disabilities, not conduct. The threats, even if they were somehow related to his disability, amounted to conduct that warranted punishment. (Bodenstab v. County of Cook, No. 08-1450, 7th Cir., 2009)

Final note: It may not be so clear-cut when a disability has an accompanying behavioral component. In that case, reassignment to a position that doesn’t involve direct contact with the public might be reasonable.

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