Proper Investigation is Key to ADA Compliance

As you know, there are a variety of state and federal statutes which protect the rights of employees.  It is vitally important that school districts conduct investigations concerning employee misconduct in a fashion that is both thorough and proper under all applicable laws.  A recent exchange between the Equal Employment Opportunity Commission (EEOC) and the National School Board Association (NSBA) concerning the Americans with Disabilities Act (ADA) exemplifies this point.  Under the ADA, a school district may be required to offer a reasonable accommodation to an employee with a disability.  The obligation to address an employee’s disability is often triggered by the employee providing evidence of the claimed disability.  But what, if anything, should a school district do where an employee acts in an improper, unusual or unprofessional manner that resembles behavior commonly associated with a disability?

The EEOC posed the following scenario to NSBA and asked for input from the Council of School Attorneys (COSA):  Two teachers act in the same unprofessional and unusual manner.  The teachers’ supervising principal knows that one teacher suffers from bipolar disorder, but knows nothing about the other’s mental health.  Would the principal’s investigation into the two teachers’ actions be different in any fashion?  Could both teachers be asked whether their behavior was the result of their mental health condition?

A NSBA staff attorney responded to the EEOC’s hypothetical and reported that in the overwhelming opinion of the COSA attorneys, the principal should not ask the other employee whether he or she is suffering from a disability.  Under the ADA, it is the employee’s obligation to provide information regarding a disability or medical condition that affects the employee’s job performance.  In addition, an employer asking whether employee conduct is based upon a disability may offend the employee and may well be pointless if the employee’s condition is undiagnosed or otherwise unknown to the employee. 

Furthermore, it may violate the ADA for a supervisor to ask an employee if they have a disability in circumstances where there is merely unusual, unprofessional behavior but no knowledge or evidence of a disability.  The ADA prohibits discrimination against employees or employee candidates who either have a qualifying disability or who are regarded by the employer as having a disability.  If the employer treats the individual as a disabled person, the individual may have an ADA claim regardless of whether they are actually disabled.  If a school district representative asks an employee whether he or she has a disability, in the absence of any knowledge or information to that effect, it may provide evidence that the person is “regarded” as having a disability by the district.  Further, asking an employee if he or she has a disability might run afoul of the ADA’s prohibition against an employer inquiring into the nature or severity of a disability unless such inquiry is job-related and consistent with business necessity. 

As a result, school officials and supervisors should not inquire into whether an employee has a disability unless and until the employee makes that condition known.  To do otherwise places the district in a precarious position of diagnosing an employee’s potential disability, which may have implications under the ADA.

Instead, districts should continue to carry out their obligations under the ADA by responding to instances where employees provide evidence of a qualifying disability.  In investigating employee misconduct, districts should focus foremost on the conduct at issue, and ask open-ended questions which permit employees to bring forth explanations for their conduct.  Employees should be encouraged to provide any relevant information in connection with instances of unusual or unprofessional behavior, but the obligation to raise the issue of a disability and to seek an accommodation should remain with employees.