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Where ?disability? is claimed as a defense, the individual must demonstrate a causal link between the claimed disability and the misconduct charged

Where ?disability? is claimed as a defense, the individual must demonstrate a causal link between the claimed disability and the misconduct charged
Human Resources Administration v Anonymous, OATH Index #1242/10

ALJ Faye Lewis sustained charges that an eligibility specialist used threatening, ethnically charged, and sexually explicit language in the workplace.

Although there was evidence that the employee had entered a rehabilitation program and was being treated for bipolar disorder, established he has a disability, ALJ Lewis ruled that such a disability does not in and of itself preclude discipline for misconduct.

The ALJ explained that discipline is permitted where, as here, the employee did not establish his or her disabilities caused the misconduct.

In the words of ALJ Lewis:

?There is some tension between the protections granted under the Human Rights Law to an employee with a disability and the right of an agency to discipline an employee for misconduct under Section 75 of the Civil Rights Law, as discussed by the Court of Appeals in McEniry v. Landi, 84 N.Y.2d 554 (1994).

?The Court interpreted the State Human Rights Law to hold that an employee could not be terminated for alcohol-related chronic absenteeism where (1) he had established a causal link between his alcoholism and misconduct and (2) had demonstrated that, as of the time of termination, he was rehabilitated.

"In so holding, the Court noted that its decision was ?not intended to create a safe haven for individuals who resort to recovery programs as a pretext for avoiding otherwise legitimate disciplinary action,? that the review is ?individualized,? and that an alcoholic who is not found to have been actually rehabilitated, or has an established propensity to relapse, may be unqualified to perform the job in a reasonable manner. 84 N.Y. 2d at 560, 561.?

ALJ Lewis considered Anonymous' disabilities with respect to the mitigation of the penalty. She found that termination was inappropriate given Anopnymous' positive response to treatment and recommended that the appointing authority imposed a 60-day suspension without pay as the penalty.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1242.pdf

Full post as published by New York Public Personnel Law on June 11, 2010 (boomark / email).