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Intersection Between Gender and Disability Discrimination

By Edgar M. Rivera

In Kassa v. Synovus Bank, a federal district court in Georgia granted summary judgment in favor of Synovus Bank (the “Bank”), concluding that a mentally ill employee’s sexist comment was not related to his disability and, therefore, the Bank’s decision to terminate him for the comment was not discriminatory.  The court found that Eleventh Circuit law did not support the employee’s argument that the comment directly related to his conditions, including intermittent explosive and impulse control disorders, and should not have resulted in termination.  This case is important because it is one of the few cases dealing with the intersection between different protected classes, specifically, disability and sex.  This case also deals with an open issue in many circuits: whether misconduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.

Since 2013, Tony Kassa has been under care for intermittent explosive disorder, paranoid personality disorder, and alcohol abuse.  Over the years, Mr. Kassa received treatment for depression, anxiety, intermittent explosive disorder, bipolar disorder, alcohol addiction, paranoid personality disorder, and impulse control disorder.  In 2015, Mr. Kassa began working for the Bank as a Network Support Analyst.  In 2016, Mr. Kassa was moved to the ATM team day-shift, which involved answering customer service calls.  In Mr. Kassa’s first performance review, Mr. Kassa earned an “Exceeds Expectations” review in technical resource but “Below Expectations” review in team performance.  On July 20, 2017, Mr. Kassa answered a call from a female Bank teller regarding a customer’s problem with the ATM at her branch.  After a problem with one of his coworkers during the call, Mr. Kassa told the teller, “Nothing personal, I hate working with women.”  She responded “oh, that’s, that’s . . .” and then stopped talking.   Mr. Kassa then added, “Nothing personal, you might be totally different, I don’t know.”  The teller’s manager contacted Mr. Kassa’s supervisor to complain about the call between Mr. Kassa and the teller.  The Bank investigated by listening to a recording of the conversation and decided to terminate Mr. Kassa.  Among other things, Mr. Kassa claimed that he is disabled and that the Bank discriminated against him by terminating him because of his disorders.

Mr. Kassa argued that he was fired for an “outburst” that was related to his disorders.  The court explained, however, that even if his conduct was related to his disorders, it was “not convinced that the [Americans with Disabilities Act or “ADA”)] requires an employer to indefinitely maintain an employee who is rude and unprofessional to his coworkers and who tells a female coworker that he hates working with women.”  The court noted that, while the Eleventh Circuit has not resolved this issue, it had suggested that misconduct related to a disability is not, itself, a disability.  For example, in J.A.M. v. Nova Se. Univ., Inc., 646 F. App’x 921 (11th Cir. 2016) (per curiam), a case under Title III of the ADA, the Eleventh Circuit concluded that a medical student who was dismissed from medical school was not dismissed due to his mental disability but because of “alcohol-related behavioral misconduct.”  The Eleventh Circuit stated that the medical school was “not required to excuse past misconduct, even if that misconduct is linked to a student’s mental disability” and that the student’s “mental disability [did] not excuse his misconduct.”  In Ray v. Kroger Co., 264 F. Supp. 2d 1221, 1228–29 (S.D. Ga. 2003), aff’d, 90 F. App’x 384 (11th Cir. 2003), the Eighth Circuit concluded that there was no ADA violation when a grocery store terminated a grocery clerk for outbursts of vulgar language that were caused by his Tourette Syndrome.  The court was persuaded that this was the correct rule and, therefore, even if Mr. Kassa’s misconduct was related to his disorders, his termination for those statements, and similar prior misconduct, is not disability discrimination.

This decision offers a guidance on a present split among the Circuits.  The Fourth Circuit has held that “misconduct—even misconduct related to a disability—is not itself a disability and may be a basis for dismissal.”  Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454 (4th Cir. 2012).  On the other hand, the Ninth Circuit has held that “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.”  Dark v. Curry Cty., 451 F.3d 1078 (9th Cir. 2006).  The Eleventh Circuit appears to be following the Fourth Circuit, holding that misconduct is always a basis for dismissal.  The split remains unresolved in the Second Circuit.

At The Harman Firm, we believe that conduct resulting from a disability should be considered part of that disability, especially where the misconduct is predictable, like in Kassa v. Synovus Bank.  If you believe you that your employer has discriminated against you based on a disability, contact The Harman Firm, LLP.

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