When you have to move forward with discipline, says Janove, the first thing is to always couch it in positive terms. Make an employee an offer to improve, says Janove.

Consistency Part of Due Process

When faced with an employee who says his or her misbehavior was caused by a disability, the EEOC says that the company may still discipline as long as the rule violated is shown to be job-related and necessary for the conduct of the business. That is, it can't be a frivolous or casual or silly rule.
However, satisfying those EEOC guidelines is not going to be enough if the actions you take against the employee aren't consistent with your actions against other employees, Janove warns.
Consistency is the missing ingredient that many HR managers forget about until it's too late, says Janove.
For example, if you discipline an employee for swearing and yelling and the person claims that "It was because of my disability," you'll lose out if you've tolerated similar behavior from other employees.
And then there's consistency's partner—nondiscrimination. Presumably, if you treat people consistently, you'll also be acting in a nondiscriminatory manner, but it's a good idea to look at the situation from another perspective. Am I treating employees in x protected status the same as I treat employees in y and z statuses?

Do a Consistency Review

So, says Janove, always make a consistency review part of HR's work in preparing discipline. Do you have a consistent track record of discipline for this offense? Could your action be perceived as discrimination? Also review policies, contracts, and personnel documents to be sure the action is appropriate, he says.

When Collective Bargaining Is Involved

What about when an employee says his outrageous behavior is excused, not by a disability, but by his union status? Janove points to one case in which there was to be a temporary layoff—a mandatory unpaid vacation—while the company completed moving to a new facility.
One worker was, to say the least, outspoken. He verbally attacked a female manager, shouting that the layoff was illegal and immoral, and he unloaded with four-letter words. Later he bragged about how he "showed her" and put her in her place.
An administrative law judge held that the worker had gone beyond the scope of protected activity for union members. His union rights did not excuse foul language directed at the manager in front of her employees. The court found the bragging to be undermining and unnecessary to protected activity.
However, says Janove, showing how tricky these cases are, that decision was reversed, and then a higher court reversed again.
How about your managers? Are they handling discipline well? Are they coached in how to handle employees who have disabilities? Who are union members? And while we're at it, how about hiring and firing and a dozen other challenges they face? They're doing those things, but the question is, are they doing them right?
If you're not sure, it's time for training. But training's a hassle—authorizing, planning, delivering, tracking—it's easy to let this critical priority slip.