Clark v. Champion National Security, Incorporated (No. 18-11613, January 14, 2020) is the Fifth Circuit’s latest statement on whether the Americans with Disabilities Act (the “ADA”) requires an employer to excuse terminable misconduct—here, sleeping on the job—based on an employee’s after-the-fact, disability-related explanation. It does not.
Clark, an insulin-dependent Type II diabetic, was a personnel manager for a security company. Clark was provided two reasonable accommodations: an office refrigerator to store insulin and flexible scheduling for doctor’s appointments. Clark also requested, but the employer refused, an exception to its grooming policies requiring clean-shaven faces and tucked-in shirts, because Clark did not show these requests were diabetes-related. Although Clark complained about the denial of these requests, after further review, the employer’s position remained the same.
The employer strictly enforced its “alertness” policy, regularly terminating employees for sleeping or appearing asleep at work when confirmed by a photograph and two witnesses. Clark’s manager received uncorroborated reports that Clark was sleeping on duty at least twice. On December 7, 2017, Clark was observed sleeping at work by a witness and Clark’s manager, who took a picture. Clark woke up on his own and he did not appear to have any physical distress. Nonetheless, Clark told his manager he believed he was having a diabetic emergency and left for the ER. While Clark was at the ER, the manager called to fire him.
Clark sued under the Americans with Disabilities Act (ADA), claiming discriminatory discharge, failure to accommodate, disability-based harassment and discharge in retaliation for his complaint about denial of his grooming policy requests. The Court rejected all claims, reaffirming several ADA principles of importance to employers.
First, the Court rejected Clark’s argument that his employer had a duty to determine if there was a medical cause for his being asleep before firing him, reasoning that the ADA does not insulate an employee from discipline for misconduct, even when an impairment causes the misconduct. The Court held “an after-the-fact, retroactive exception to the alertness policy” is not a reasonable ADA accommodation. Clark had not requested any accommodation related to falling asleep at work or lost consciousness; the employer had no obligation to anticipate potential consequences of a disability that Clark had not communicated.
Second, the Court concluded that Clark was not qualified for his position at the time of his discharge because he could not perform his job duties while asleep. While the Court’s analysis of this point is somewhat novel, the decision affirms the commonplace proposition that staying awake while on duty is an essential job function of almost any job.
Third, the Court emphasized that the mere fact that an employer disagrees with or seeks clarification from an employee about the reasonableness or necessity of a proposed accommodation is not actionable disability-based harassment. Notably, there was no evidence here that the employer used harsh or unkind language when communicating with Clark about his grooming requests, or otherwise indicated any anti-disability animus in these exchanges.
Finally, the Court offered guidance to employers on how to support its legitimate business reason for termination. The Court emphasized the manager’s reasonable belief that misconduct had occurred was more important than the ultimate accuracy of the reason. Here, Clark was terminated after multiple reports that he was asleep at work. The incident for which he was fired was verified by a photo and two witnesses, the same standard that supported the termination of others who slept—i.e., consistent application of discipline to similarly situated employees. Because the manager observed Clark wake up and he did not appear in distress, the manager was reasonable in disbelieving Clark’s post-nap excuse that diabetes caused his loss of consciousness. Moreover, even after his discharge, Clark produced no medical evidence that he in fact had suffered a diabetic emergency.
Following Clark, Fifth Circuit employers should be reassured that consistent enforcement of reasonable disciplinary rules generally will not violate the ADA. Moreover, Fifth Circuit employers should also take comfort that the ADA will not require employers to excuse performance of essential job functions. Nonetheless, employers must take care to engage in the interactive process and offer accommodations to employees who identify a disability and request reasonable accommodations, communicating about such requests directly and with dignity and respect.