Dealing With Conduct

Problems in the Workplace

Fact Sheet Series
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JAN’S ACCOMMODATION FACT SHEET SERIES

DEALING WITH CONDUCT PROBLEMS IN THE WORKPLACE

Employers have all types of formal and informal conduct policies, ranging from how

employees should dress and act to prohibitions on violence and illegal drug use.

However, even though they have these policies, employers are sometimes uncertain

about to apply them when there is the possibility that a disability is causing or

contributing to a conduct problem. In some cases, employers ignore the problem and

completely fail to apply their usual policies. In other cases, employers try to deal with

the problems indirectly, for example finding other reasons to terminate the employee.

Ignoring conduct problems or dealing with them indirectly often means the problems will

continue until they start disrupting the workplace or affecting customer service or might

even lead to a discrimination complaint.

The following process is intended to help employers deal directly with conduct problems

before they get out of hand and when appropriate, apply existing conduct policies.

Step 1: Identify the problem

The first step in the process is to identify the problem. Employers may want to first

decide who will deal with conduct problems when they arise (e.g., human resources or

the employee’s direct supervisor). The person chosen to deal with the problem should

verify that the problem exists, by either making sure information about the problem

came from a reliable source or through direct interaction with the employee who has the

problem. Before talking with the employee, the employer should decide whether the

source of the information will be provided to the employee, be prepared to discuss

details about the problem, and be familiar with company policy and procedure related to

the problem.

If the employee has a known disability, the employer should not assume that the

conduct problem is disability-related. There may be other causes for the problem

besides the disability, such as personal or financial difficulties, cultural differences, or

simply a failure to comply with the conduct rule.

Step 2: Communicate with the employee

Once the employer has identified the problem, it is time to meet with the employee.

When discussing the problem with the employee, the employer should be direct, letting

the employee know what the problem is, that it must be addressed, and the

consequences of not addressing it. In some cases, the employee may be unaware that

a problem exists and may need specific information about what the problem is. It may

be useful to describe the problem and let the employee know how it is affecting the

workplace.
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The employer also should let the employee know what is expected (e.g., when must the

problem be fixed, what happens in the meantime, and what follow up will take place). If

there is a specific company policy that applies, the employer should point it out or

provide a copy. The employer also may want to make a general statement such as, “If I

can help you resolve this problem, please let me know.”

Step 3: Modify or apply usual policies

If the employee does not indicate that the problem is related to a disability, then the

employer can apply its usual policies. If the employee indicates that the problem is

related to a disability, then the employer should initiate an interactive process to

determine whether the Americans with Disabilities Act (ADA) applies and whether there

are accommodations that may resolve the problem. The ADA applies when an

employer has at least 15 employees and the employee meets the ADA definition of

disability.

For information about how to determine whether an employee has a disability under the

ADA, visit: http://AskJAN.org/corner/vol02iss04.htm.

When can an employer apply its usual policies to an employee with a disability?

In some cases, even if the employee indicates that a disability is causing a conduct

problem, the employer may be able to apply its usual policies. Employers can apply

conduct policies to all employees, including employees with disabilities, when the

policies are “job-related and consistent with business necessity.” According to the Equal

Employment Opportunity Commission (EEOC), certain conduct policies will always

meet this standard, such as:

 Prohibiting violence, threats of violence, stealing, and destruction of property

 Prohibiting insubordination and inappropriate behavior between coworkers

 Prohibiting sending inappropriate or offensive emails, using the internet

inappropriately, or using computers and other equipment for non-work related

purposes

 Requiring employees to observe safety and operational rules

 Prohibiting drinking alcohol or illegal use of drugs in the workplace

Other conduct policies may sometimes be job-related and consistent with business

necessity and sometimes not, such as:

 Complying with dress codes

 Behaving appropriately

 Meeting attendance and tardiness standards

 Prohibiting animals in the workplace

 Prohibiting eating at workstations

 Limiting personal calls during work time
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How can employers determine when a policy is job-related and consistent with

business necessity?

To determine whether a conduct policy is job-related and consistent with business

necessity and whether it can be applied to a specific employee with a disability, the

following factors should be considered:

 The manifestation or symptom of a disability affecting the employee’s conduct

 The frequency of occurrences

 The nature of the employee’s job

 The specific conduct at issue

 The working environment

The following are examples from EEOC guidance called The ADA: Applying

Performance and Conduct Standards to Employees with Disabilities at

http://www.eeoc.gov/facts/performance-conduct.html

Example 1: Steve, a bank teller, barks, shouts, and makes other noises that are so loud

and frequent that they distract other tellers and cause them to make errors in their work.

Customers also hear Steve’s vocal tics, and several of them speak to the bank

manager. The manager talks with Steve and he explains that he has Tourette

Syndrome, a disorder that causes repeated involuntary movements or sounds. Steve

explains that he cannot control the tics nor can he speak more softly when these tics

occur. Steve can be reassigned, or terminated if no reassignment is available, because

it is job-related and consistent with business necessity to require that bank tellers be

able to (1) conduct themselves in an appropriate manner when serving customers and

(2) refrain from interfering with the ability of coworkers to perform their jobs.

Example 2: Steve works as a bank teller, but his Tourette Syndrome now causes only

infrequent throat clearing and eye blinks. These behaviors are not disruptive to other

tellers or incompatible with serving customers. Firing Steve for these behaviors would

violate the ADA because it would not be job-related and consistent with business

necessity to require that Steve refrain from minor tics that do not interfere with the ability

of his coworkers to do their jobs or with the delivery of appropriate customer service.

Example 3: Assume that Steve has all the severe tics mentioned in Example 1, but he

now works in a noisy environment, does not come into contact with customers, and

does not work close to coworkers. The environment is so noisy that Steve’s

vocalizations do not distract other workers. Steve’s condition would not necessarily

make him unqualified for a job in this environment.

If a conduct policy is not job-related and consistent with business necessity, then the

employer should modify the policy for the employee. If a conduct policy is job-related

and consistent with business necessity, then the employer should try to provide

accommodations so the employee can comply with the policy.
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How can an employer determine effective accommodations?

To help determine effective accommodation options, an employer should gather

whatever information is needed regarding the employee’s limitations or symptoms, the

work environment, and in some cases, the employee’s accommodation ideas. If the

accommodation is obvious, no additional information may be needed.

It may be possible that the employee knows that he/she is having difficulty, but is

uncertain about the exact cause or possible solution. In this case, the employer may

need to request medical information to help determine the cause and to help explore

accommodations. Employers also may need to contact outside resources such as JAN.

For information about medical inquiries in response to an accommodation request, visit:

http://AskJAN.org/media/medical.htm.

If there are no accommodations that would help the employee comply with the conduct

policy, the employer can apply its usual discipline if the employee continues to violate

the policy.

The following are examples from EEOC guidance called The ADA: Applying

Performance and Conduct Standards to Employees with Disabilities at

http://www.eeoc.gov/facts/performance-conduct.html

Example 1: A professional office requires that its employees wear business dress at all

times. Due to diabetes, Carlos has developed foot ulcers making it very painful to wear

dress shoes. Also, dress shoes make the ulcers worse. Carlos asks to wear sneakers

instead. The supervisor is concerned about Carlos’s appearance when meeting with

clients. These meetings usually occur once a week and last about an hour or two.

Carlos and his doctor agree that Carlos can probably manage to wear dress shoes for

this limited time. Carlos also tells his supervisor that he will purchase black leather

sneakers to wear at all other times. The supervisor permits Carlos to wear black

sneakers except when he meets with clients.

Example 2: Jane has Down syndrome and is employed as a bagger at a grocery store.

Jane is very friendly and likes to hug customers as they leave. Although she means

well, management finds this behavior is unacceptable. Jane’s manager talks to her and

also contacts the job coach who helped Jane learn to do her job. The manager explains

the unacceptable behavior and as a reasonable accommodation has the job coach

return to work with Jane for a few days until she learns that she cannot hug the

customers. It is job-related and consistent with business necessity to require that Jane

refrain from hugging customers. Although the grocery store does not have a rule

specifically prohibiting physical contact with customers, refraining from such conduct is

an inherent part of treating customers with appropriate respect and courtesy.

Updated 6/01/10.
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This document was developed by the Job Accommodation Network, funded by a

contract agreement from the U.S. Department of Labor, Office of Disability Employment

Policy (DOL079RP20426). The opinions expressed herein do not necessarily reflect the

position or policy of the U.S. Department of Labor. Nor does mention of trade names,

commercial products, or organizations imply endorsement by the U.S. Department of

Labor.