A Sleepwalking Worker Jumps Into A Colleague's Bed On A Business Trip. Should This Innocent Mistake Be Covered By Disability Laws? An innocent mistake? An embarrassing sleepwalking incident? Perhaps. But what are the workplace consequences?
By Gene Marks Edited by Maria Bailey
Opinions expressed by BIZ Experiences contributors are their own.
According to this report in the American Bar Association Journal, O'Donnell heard a knock on his hotel room door around midnight. When he opened it, he found co-worker Jennifer Harkey, clad in only a black robe. Taking a step back, he watched, stunned, as Harkey made her way to his bed, got in and pulled the sheets up to her face.
When O'Donnell informed his colleague that she was in the wrong room and then asked her to leave, she was unresponsive. According to court documents, O'Donnell said, "she just laid there, didn't move and was nonresponsive to me asking her to leave and telling her she was in the wrong room." Harkey did not touch O'Donnell during the incident. Moreover, O'Donnell states that she never propositioned him or sexually harassed him.
Regardless, "O'Donnell was concerned," a summary written in the 5th U.S. Circuit Court of Appeals of New Orleans says. "He was a married man on an out-of-town business trip and a woman was in a bed in his hotel room. He called his supervisor."
The ABA Journal reports further that the supervisor called by O'Donnell then contacted the director of human resources (who was also at the conference) to his room. Still, the director was also unable to wake Harkey. However, she was finally roused, and with the help of hotel security, she was eventually escorted back to her room.
An innocent mistake? An embarrassing sleepwalking incident? Perhaps. But unfortunately for Harkey, the problem didn't remain in St. Louis. That's because when Harkey arrived back at the office, she found herself suspended and ultimately terminated for her behavior.
Related: 7 Honest Mistakes That Can Get You Fired
Harkey sued, saying that her sleepwalking has been a problem of hers since an early age and that her sleepwalking problem is a disability that's protected under the American With Disabilities Act (ADA). A doctor who examined her agreed that she suffered from the disorder.
But a court ultimately found in favor of the employer, and her termination was sustained because — although employers cannot take action against an employee with a disability (like being unable to do an inventory count from a wheelchair) — they can still discipline or terminate someone for conduct caused by a disability. As a result, the court held that the company fired Harkey for "misconduct" - a legitimate, nondiscriminatory reason.
"Although the case is heartbreaking, it's consistent with what courts say about misconduct," David K. Fram, the director of ADA and Equal Employment Opportunity services for the National Employment Law Institute that helped formulate ADA guidelines when he was a policy attorney for the Equal Employment Opportunity Commission told HR Dive. "For this woman, this was very real. She didn't intend any misconduct."
Related: Determining What Is and Isn't a Disability
Am I the only one who found this whole story a bit extreme?
As a business owner, if I heard of this situation between two employees, I would be hard-pressed to terminate the sleepwalker. Discipline yes. A stern warning for sure. A heightened sense of awareness — or even avoidance — of sending her away to travel for company business? Definitely. But termination? Even according to the HR director's notes, which she discussed during her deposition, as security helped get Harkey back to her room, Harkey was "very apologetic" and embarrassed.
Most of my clients would avoid this type of publicity. If push came to shove, they likely would've settled with the employee and made her sign a non-disclosure agreement rather than sue. Unfortunately, that didn't happen. So now the story is public.
At best, I hope Harkey gets a decent reference for the next job. And some help with her problem.
