5th Cir.: ADA did not protect employee who sleepwalked into colleague’s hotel bed

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Dive Brief:

  • NextGen Healthcare did not violate the Americans with Disabilities Act when it fired a salesperson with a sleeping disorder after she sleepwalked into a male colleague’s hotel bed, the 5th US Circuit Court of Appeals held (Harkey v. NextGen Healthcare, Inc., No. 21-50132 (July 15, 2022)).
  • Around midnight during an out-of-town sales conference, a male NextGen employee heard a knock on his hotel room door, according to court records. Thinking it was his male co-workers, he opened the door and saw the salesperson wearing nothing but a robe. She dropped the robe, walked in, got into his bed and went to sleep. The male employee called the HR director, who arrived and woke the salesperson up. She explained that she must have been sleepwalking, which she had done since she was a child. NextGen fired her a week later. She was diagnosed with somnambulism, a sleepwalking disorder, the following week.
  • The salesperson sued NextGen for violating the ADA. The 5th Circuit affirmed judgment for NextGen. The salesperson could not show she was fired because she had a sleepwalking disorder, the court explained. Rather, she was fired because of what she did when she was sleepwalking, it said.

Dive Insight:

It’s a concept that can be hard to grasp: Under the ADA, employers can’t take action against someone because of their disability. But they can discipline someone for conduct caused by a disability.

In explaining its decision, the court pointed to multiple past cases featuring similar circumstances. In one case, a man with post-traumatic stress disorder had a profane and angry confrontation with his supervisor. The outburst was arguably caused by his PTSD, but the employer was not liable for firing him because his behavior violated company policy, the court held.

In a second example, an employee, who suffered from bipolar disorder, verbally abused his supervisor for denying his vacation request. He was fired, and he then sued under the ADA. The court ruled for the employer. Although his reaction could have been attributed to the bipolar disorder, he could not use the ADA to avoid accountability for his own actions, the court noted.

“Although the case is heartbreaking, it’s consistent with what courts say about misconduct,” David K. Fram told HR Dive in a phone interview. Fram is the director of ADA and EEO services for the National Employment Law Institute and helped formulate ADA guidelines when he was a policy attorney for the EEOC.

Even if the employer finds that termination is warranted, it’s important for HR professionals to be sensitive and to understand the employee didn’t have control over what happened, Fram said. “For this woman, this was very real,” I said. “She didn’t intend any misconduct.”

According to the court record, the HR director was forceful with both the salesperson and the male colleague. Although the salesperson was embarrassed and apologetic and explained that she had a problem with sleepwalking, the HR director allegedly told her that “she was in very big trouble,” called her a “liability” multiple times and said she should “call a doctor. ” The male colleague said he wanted to speak to a lawyer before he provided NextGen with a statement because of the accusatory-sounding questions the HR director had asked him, court documents noted.

In tense situations, it’s always a good idea to step back, take a deep breath and then act in a caring, sympathetic way to enforce the rules, Fram suggested.

He also cautioned HR against suggesting that an employee being interviewed about misconduct seeks medical attention. Keep the misconduct and the medical issue separate, and base your disciplinary determination on the misconduct, Fram said. Telling someone to see a doctor can appear as if you’re asking for medical information or a medical diagnosis. That’s dangerous to do before you’ve made a termination decision because of what the information may show — suggesting that the medical diagnosis was part of your decision, Fram warned.

The Job Accommodation Network has more information on sleep disorders and how they can be reasonably accommodated. For example, depending on the employee’s limitations, the work environment and the job, an employee with a sleep disorder could suggest a flexible schedule, drinking cool water during the day, periodic breaks to walk around or teleworking if the job permits, Linda Carter Batiste , an attorney and legislative specialist with JAN, suggested in an email to HR Dive.

Generally, an employer doesn’t have to ask an employee if a reasonable accommodation is needed if an employee hasn’t asked for one, Batiste noted in a JAN post. “If HR isn’t sure whether the employee has a disability, then the best approach might be to focus on what is happening (ie inappropriate behavior) and ask whether there is anything HR can do to help address the problem,” Batiste said in the email. Then, keep the focus on how the disability is creating the problem that needs to be addressed, she said.

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