Ask FELTG: Does an employee’s disability forgive misconduct, if the misconduct is caused by the disability?

March 3, 2026

Thanks for the question. Many of you saw headlines about the recent BAFTA awards and how an attendee shouted the n-word at two Black announcers, and claimed his Tourette’s caused the outburst. That event prompted this question.

The answer, generally, is no. Conduct standards are the same for individuals with disabilities as they are for individuals without disabilities, and an agency does not need to permit or forgive misconduct even if it is directly related to or caused by the disability if it would not permit that conduct from someone without a disability.

Below are a couple of cases on the topic.

Case One: The complainant, a Mental Health Counselor, engaged in the following workplace behaviors:

  • Yelled at staff and banged his fists with anger, which scared his coworkers
  • Refused to perform a required evaluation and instead interrupted a coworker – while she was performing a time-sensitive task – to insist that she complete his duties for him
  • Missed a patient appointment
  • Had a combative reaction when a coworker called to check on his whereabouts and ask him about incomplete assignments

The agency terminated him based on this conduct (plus performance issues), and he filed a complaint, alleging disability discrimination.

EEOC held:

[T]he Commission’s Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities at Question 30 specifically states that an employer may discipline an individual with a disability for violating workplace conduct standards even if the misconduct results from the disability. We ultimately find ample support for the Agency’s decision to remove him based, in relevant part, on his outbursts, which violated the Agency’s workplace conduct standards.

Omer P. v. VA, EEOC App. No 2024004871 (Dec.15, 2025)

Case Two: The complainant, an IT Specialist, who was on the autism spectrum (according to the case, Asperger’s syndrome), engaged in several inappropriate workplace behaviors including:

  • Eating food off coworkers’ plates during lunch
  • Hugging a male coworker without permission
  • Visiting a female coworker’s desk up to seven times per day, making comments about her appearance, and making multiple attempts to friend her on social media – then, after being told to leave her alone, waiting by her car in the parking lot, making her feel uncomfortable and unsafe

The complainant’s supervisor counseled him to stop, both by email and during a meeting with his job coach. The complainant then became agitated and waited in the parking lot for the female coworker, yelled at her, blocked her from leaving the parking lot, then followed her in his vehicle as she drove home.

The agency terminated him and he filed an EEO complaint, asserting he was terminated because of his disability. The EEOC found the agency had a legitimate, nondiscriminatory reason for the separation: the complainant’s inappropriate conduct.

Justin P. v. DFAS, EEOC Appeal No. 0120150179 (Nov. 16, 2017)

Both of these examples involved probationary employees, which is why they were decided by the EEOC – probationers do not have MSPB appeal rights over conduct-based terminations.

But, we see similar outcomes in MSPB cases as well. One important note in cases involving MSPB jurisdiction, is that the agency must consider whether the disability is a mitigating factor under Douglas factor 11. See Colon v. Navy, 58 MSPR 190 (1993). That said, even if the medical condition caused the misconduct, it still does not excuse the misconduct entirely.

Have a question? Ask FELTG.

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This information is for educational purposes only and is not legal advice. Contacting FELTG does not create an attorney-client relationship. Please consult an attorney for legal advice.