Are Employers Required to Accommodate Theft under the ADA?


Reasonable accommodation of employee misconduct is not a new issue. But an unusual twist in a recent court ruling may require employers to accommodate employee theft under the Americans with Disabilities Act (ADA).

Guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) directs that employees with disabilities may be held to the same standard of conduct as other employees. However, if a disability is the cause of the misconduct, the employer may need to consider providing accommodations to assist the employee in meeting those standards.

In April 2014, a California federal court heard a case involving the firing of a diabetic employee for violating her employer’s anti-theft policy when she allegedly took a bag of potato chips without paying for it while suffering a hypoglycemic attack (low blood sugar). When she attempted to pay for the chips, no one was at the counter. She then put the chips by her register, where an assistant manager later found them.

The employer argued that terminating the employee was in line with its strict, neutral and uniform enforcement of prohibiting eating food merchandise without first paying for it. The employer also argued that it would be unreasonable to require an employer to accommodate employee theft. It also pointed to the EEOC’s own guidance which states that an employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity.

The court disagreed with the employer, stating that it failed to explain what was "consistent with business necessity" in the context of an employee suffering a hypoglycemic attack. Furthermore, the employer did not establish that the worker was actually "stealing" since she attempted to pay for the product, but was unable to do so because no one was at the register. Accordingly, the court stated that — under Ninth Circuit case law — whether or not the employee’s misconduct was caused by her disability was a question of fact for a jury, as was the question of whether the employer should be required to "accommodate" her misconduct under the ADA.

The court also rejected the employer’s argument that it had a legitimate, nondiscriminatory reason for the employee’s termination — violation of its neutral, uniformly applied anti-theft policy. Rather, the court stated that the alleged misconduct forming the basis of her termination was caused by her disability. Consequently, the employer was unable to point to any misconduct unrelated to her disability that would provide a legitimate, non-discriminatory reason for her termination.

It should be noted that most federal jurisdictions do not follow the Ninth Circuit’s rationalization and the EEOC’s approach of requiring accommodations where an employee’s misconduct stems from a disability. Rather, employers outside the Ninth and Tenth Circuits have more leeway to discipline or terminate an employee for violating a job-related conduct standard that is consistent with business necessity, even if the misconduct was the result of the employee’s disability.

All determinations under the ADA must be made in context, with consideration of the specific facts of the employee’s condition, job duties and the employer’s situation. This makes it important for human resource professionals to have a firm understanding of ADA requirements and ADA compliance issues.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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