Tag Archives: Rehabilitation Act of 1973

Employers Do Not Have to Allow Unacceptable Workplace Behavior Due to a Disability

Contributed by Michael Wong

The Americans with Disabilities Act (ADA, ADAAA) and Rehabilitation Act, which incorporates most of the ADA standards, prohibit discriminating against employees based on their disabilities.  Indeed, with the ADAAA amendment, recent court decisions have broadened the scope of what is considered a disability, as well as what steps an employer must take in order to comply with the law.

In doing so, employers may feel that their hands are tied behind their back in dealing with employees who perform poorly and/or act out at work.  However, just because an employee is disabled does not mean that they should be given carte blanche freedom in what they say and do in the workplace. Recently, the Eastern District of Wisconsin dismissed a former Wisconsin Department of Transportation employee’s claims under the Rehabilitation Act (which incorporates most of the ADA standards) and Family Medical Leave Act, finding that the employee’s conduct was unacceptable.  In doing so the court followed the Seventh Circuit case, Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013) and held that an employer may terminate an employee for engaging in unacceptable workplace behavior without violating the ADA (or Rehabilitation Act), even if the behavior was precipitated by a mental illness.

Specifically, the court held that the employee’s hysterical screaming and suicidal behavior in front of co-workers and members of the public was simply not behavior that an employer generally has to tolerate or accommodate. Indeed, the court recognized that absent a disability, an employer would otherwise be entirely justified in immediately terminating an employee who engaged in such behavior.

While this may be an extreme example, employers should understand that their hands are not tied when it comes to dealing with employees who blame their poor performance or unacceptable workplace behavior on a disability. However, since this is a sensitive subject that can very easily lead to a discrimination claim, employers should make sure to understand the current case law and consult with legal counsel before taking disciplinary steps that may include termination.


Federal Contractors Beware: A New DOL Rule and New Requirements

Contributed by Karuna Brunk

In an effort to improve the hiring of veterans and individuals with disabilities, on August 27, 2013, the U.S. Department of Labor announced two new rules to update the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and the Rehabilitation Act of 1973.  Both laws apply to federal contractors and subcontractors. 

The rules are similar and require the following from federal contractors:

  • The new addition to the VEVRAA sets a benchmark for hiring protected veterans.   Employers should use either the national percentage of veterans in the labor force (currently 8%) or calculate a new benchmark based on data from the Bureau of Labor Statistics.  Similarly, the new addition to the Rehabilitation Act of 1973 sets a 7% utilization goal for qualified individuals with disabilities in each job group or in an entire employer’s workforce if the contractor has fewer than 100 employees. 
  • Document and compare the number of veterans and individuals with disabilities who apply for jobs with those who are actually hired. 
  • Encourage applicants to self-identify as veterans or as individuals with disabilities throughout the application process.
  • Incorporate specific equal employment opportunity language into a subcontract clause.
  • Publicize job openings in a format and manner so that state or local jobs services can access them.
  • Allow the Office of Federal Contract Compliance Programs to have access to and review these goals and results for compliance purposes.

In addition to the above, the update to the Rehabilitation Act incorporates the broad ADA Amendments Act definition of disability.  The bottom line for federal contractors – update your hiring processes and affirmative action plans to comply with the new DOL requirements!

To view the DOL press release, click here.