Navigating Faculty Misconduct and Disabilities on Campus
Most higher education institutions have been faced with the situation where a faculty member is exhibiting performance problems or is engaging in misconduct on campus. When you add a potential disability to this equation, it becomes significantly more complex. How and when you react can impact your institution’s compliance with the Americans with Disabilities Act (ADA). For example, although the ADA prohibits employment discrimination against qualified individuals with disabilities who can perform the essential functions of their jobs with or without accommodation, it does not protect a faculty member who waits until after a disciplinary process begins before alerting the institution to his/her disability. In that scenario, timing of the disability discovery can be crucial. On the flip side, it is essential that administrators not jump to conclusions about the underlying reasons for a faculty member’s performance deficiencies or misconduct, because doing so can, on its own, violate the ADA.
To help maneuver through these tricky situations, here are some common scenarios that may arise on your campus.
During a termination meeting with a faculty member, you learn that the faculty member has a disability. Can you still move forward with termination?
Yes. An employer does not have to stop a termination meeting if a faculty member notifies the school of a disability and asks for a reasonable accommodation during a termination meeting. If the faculty member’s conduct is such that the appropriate discipline is termination, and the faculty member waits to request reasonable accommodation until after the termination process begins, the employer may follow through with termination without further investigation into the employee’s disability. In this scenario, the faculty member waited too long to request a reasonable accommodation. Faculty members may ask for reasonable accommodation before or after an employer informs them of performance problems or misconduct, but the timing of the request is key. In this scenario, if termination is warranted and the institution had no knowledge of the disability, it does not have to halt the process upon becoming aware of the disability. But note: this scenario and response is dependent upon the school’s publication and distribution of a disability accommodation policy. If there is no such policy, and the faculty member has no knowledge of the process of requesting accommodation, the school should act on a verbal request for accommodation as soon as it becomes aware of it.
If the intended disciplinary action is something other than termination, can you still move forward with disciplinary action (assuming you learned of the alleged disability after the disciplinary process commenced)?
Yes, though the institution should simultaneously commence the required interactive process under the ADA. When a faculty member’s conduct warrants discipline other than termination, the school is not required to rescind a disciplinary warning or performance improvement plan upon learning of the disability. But, in addition to the discipline, the school should begin the interactive process – the informal discussion between employer and employee to determine if any job modification will enable the employee to perform the essential functions of the job. The school cannot refuse to discuss a request for accommodation or fail to provide reasonable accommodation as a punishment for the performance/conduct problem.
After the faculty member requests accommodation, discussions should begin with the faculty member regarding how the disability may be affecting performance and what accommodation(s) would assist the faculty member in improving that performance. But remember that the process is interactive, meaning that the school, itself, may also suggest possible accommodations that would allow the faculty member to perform the job. A faculty member is entitled to reasonable accommodation(s), not the precise accommodation(s) that he/she wants. This back and forth exchange of information between school and faculty member is an important part of the determination of whether the faculty member will be able to continue performing the essential functions of the position with or without accommodation.
Can a college or university ask a faculty member with a known disability whether they need a reasonable accommodation when discussing performance or misconduct problems?
Yes, though there may be a better approach. An employer may ask a faculty member with a known disability who is having performance or conduct problems if he or she needs a reasonable accommodation. For example, the employer knows that a faculty member has bipolar disorder that was previously controlled by medication. Currently, the faculty member is failing to appear regularly for class, exhibiting erratic behavior when appearing in class, and students are complaining that the lectures are unfocused and off topic. While the ADA permits the institution to approach the employee and ask if an accommodation is required, this approach may expose an employer to a “perceived as” disability or harassment claim (assuming that the faculty member believes that he/she is not disabled but is being treated by the employer as if he/she has a disability). Faculty members who are perceived as disabled are protected by the ADA, even if they are not currently suffering from an actual disability defined by the ADA.
The most practical way to address this situation initially would be to approach the faculty member and ask if help is required, without reference to the disability. So, in the example above, the employer should approach the faculty member, address the complaints and witnessed conduct, and ask if the faculty member needs assistance or help. There is no need to address the prior bipolar diagnosis. This approach allows the faculty member to request accommodation if it is required, without the employer raising that issue and exposing itself to the risk of a disability or harassment claim.
If the faculty member does not seek accommodation after being approached in this manner, the employer is free to proceed down the performance path. Generally institutions are given wide latitude to develop and enforce conduct rules. An employer may hold the individual to the same conduct standards that it applies to all other employees, disabled or not. Even if the disability causes the violation of a conduct rule, an employer may discipline a faculty member if the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard. So long as all faculty members are disciplined consistently for similar violations of conduct rules, there will be no violation of the ADA.
Can a college or university require a faculty member with performance or conduct problems to provide medical information or undergo a medical examination?
Yes. The ADA permits an employer to request medical information or order a medical examination when such a request is job-related and consistent with the institution’s “business needs.” An employer must have a reasonable and honest belief of the need for a medical examination based on objective evidence that an employee is unable to perform an essential function of the job or poses a “direct threat” to himself or others because of a medical condition.
When confronted with a disabled faculty member with a performance or conduct problem, the best and most practical first step is to seek medical information from the faculty member’s medical provider supporting the disability. When accommodation has been sought, the employer can also seek medical certification from the faculty member identifying the functional limitations creating the need for accommodation. If the submitted documentation is insufficient, unclear, or if the employer believes it needs additional information that is not being provided by the faculty member’s medical provider, then the employer may seek its own medical examination of the faculty member. By gathering this information, the school can collect as much information as possible about the faculty member’s limitations and come to the best possible solution for the school, the professor, and the impacted students.
There are also limited circumstances where the nature of the employee’s performance problems or unacceptable conduct itself is evidence that a medical condition may be the cause. For example, consider a situation where a professor with no history of performance or conduct problems suddenly develops both – the professor has mental and emotional breakdowns in class and becomes belligerent when asked questions related to the conduct. This sudden and marked change in performance and conduct reasonably suggests that a medical condition may be the cause of the professor’s performance and conduct problems. In this situation, the professor’s performance/conduct alone is enough evidence for the institution to seek an independent medical examination. The institution need only document the behavior (e.g., obtain statements reflecting the conduct or a peer review) to substantiate its reasonable and honest belief in order to take action.
- Consider implementing a disability accommodation policy.
- Timing is important when evaluating faculty member discipline:
- If a faculty member waits until after the disciplinary process begins to ask for a reasonable accommodation, an institution is not required to withhold disciplinary action, including termination.
- But if the disciplinary action is not termination, the institution must also engage in the interactive process upon learning of the faculty member’s disability.
- An institution can require a faculty member to provide medical information or undergo a medicalexamination when it holds a reasonable and honest belief that a medical condition is negatively impacting performance and the faculty member is therefore unable to perform the essential functions of the job.
If your institution needs any assistance navigating these issues or implementing a disability accommodation policy, please contact the authors of this article.
This article appears in the Spring 2016 edition of Saul Ewing’s Higher Education Highlights newsletter. Click here to see the complete newsletter.