Just last week that I was complaining about the lack of guidance for employers dealing with employees who blame their bad behavior on a disability. Now a fired financial adviser is asking the Supreme Court to weigh in on the issue.
Morgan Stanley fired Ryan Foley from his job as a financial analyst when he removed computer hardware from the office without permission and then denied having done so. Foley sued saying that he was experiencing his first ever bipolar episode and that the company should literally be more accommodating. The court granted summary judgment for Morgan Stanley, Foley appealed, and the 11th Circuit Court of Appeals affirmed.
Now Foley is asking the U.S. Supreme Court to take the case up on a writ. Will it do so? Unlikely. The Court receives thousands of writ petitions and grants only around 2%. Plus, they usually like to see more detailed analysis by the appellate courts before they dive into an issue.
It would be nice if there was something definitive to guide employers dealing with employees who use disability as an excuse for inappropriate behavior. But unless the employees pose a tangible threat to their own health or safety or the health or safety of others, we have to keep waiting for that guidance.
Until then, employers need to proceed cautiously. At a minimum, this includes determining whether the employer is required to engage the employee in the interactive process and documenting the steps taken and the justification for taking them.
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