July 6, 2011 8:45AM

‘My Disability Made Me Do It’

James J. McDonald, Jr., a California attorney with the firm of Fisher & Phillips, has long been one of the more incisive critics of the employment provisions of the Americans with Disabilities Act (ADA), in particular the law’s coverage not just of physical handicaps like deafness and paraplegia but also emotional, mental and behavioral disabilities, which often bring with them a high potential for disrupting the workplace. Last month McDonald spoke on this topic at the annual convention of the Society for Human Resource Management (SHRM), the professional organization of the HR field. Here are some highlights from his speech of cases in which employers, he said, were required to accommodate employees:

*A 911 operator whose narcolepsy made him [or her? — W.O.] fall asleep on the job.

*A county custodian with borderline mental retardation who was twice criminally convicted of stealing items from offices she was cleaning.

*A medical transcriptionist with obsessive‐​compulsive disorder who repeatedly came to work late, or not at all.

*An employee with bipolar disorder, who, when given a performance improvement plan, threw it across the room and shouted profanities. She later kicked her desk and said “They’ll regret this.”

To find out more about why the language of the ADA has led to such cases, how the Ninth Circuit (joined by the Tenth) has developed legal standards even more protective of misbehaving employees than those proposed by the Equal Employment Opportunity Commission (EEOC), and why McDonald thinks it is (perversely) shrewd for employers to keep themselves in ignorance about some employee disabilities, follow the link. (In this 2010 paper, by the way, McDonald gets into detail on a long list of ADA/​misconduct cases, each seemingly more extreme than the last.) It’s worth remembering that the U.S. Supreme Court for a while attempted to interpret the ADA narrowly so as to focus the law’s benefits on traditional disabled groups, only to be slapped down by the George W. Bush‐​era U.S. Congress, which overrode those decisions (to general applause in the press) and instead instituted ultra‐​broad definitions of disability for ADA purposes. Earlier on the ADA here, here, here, etc.