Is Sleepwalking a Disability? 

By Geoffrey Lindley

Jennifer Harkey had an unfortunate encounter with a male co-worker while she was sleepwalking. She was fired.

Harkey v. NextGen Healthcare, Inc., 2022 U.S. App. LEXIS 19641 at *1 (5th Cir. July 15, 2022)

A Strange Employment Situation

An Out-of-Town Business Trip and an Unexpected Encounter

Jennifer Harkey had worked for NextGen Healthcare, Inc., as an implementation specialist and then as a sales specialist since March 2008. NextGen, 2022 U.S. App. LEXIS 19641 at *1. There is no evidence that NextGen ever had any issues with Harkey as an employee. However, that all changed in October 2018.

Harkey and other NextGen employees were attending a national sales conference at a hotel in St. Louis, Missouri. On the evening of October 10, 2018, Harkey had dinner and a few drinks with a female co-worker. She then retired to her hotel room where she watched some television and fell asleep. Id. at *1-*2.

That same evening, Scott O’Donnell, another NextGen employee attending the conference, was drinking at the hotel bar. Id. at *2. Upon returning to his hotel room, he heard a knock at the door. Id. He assumed that the knock was by one of the other men who he had been visiting with at the hotel bar, so he opened the door without checking the peephole. Id. He immediately saw Harkey who was wearing nothing but a black cotton robe that came to her knees. Id.

O’Donnell was shocked and moved backwards, at which point Harkey entered the room. Id. O’Donnell did not recognize Harkey and exclaimed, “I think you’re in the wrong room. What are you doing here? You need to get out.” Id. He again repeated, “You’re in the wrong room.” Id. Harkey did not reply and simply walked over to a made bed, got in it, and pulled the sheets up. Id. O’Donnell testified that “[s]he just laid there, didn’t move and was nonresponsive to me asking her to leave and telling her she was in the wrong room.” Id.

According to O’Donnell, Harkey never touched him, harassed him, or sexually propositioned him in anyway. Id. at *2-*3. Nevertheless, O’Donnell was very concerned as he was a married man on a business trip who now had a strange woman in a bed in his hotel room. Id. at *3. Therefore, O’Donnell called his supervisor, Sean Murtagh. Id. Murtagh came to his room and did not recognize Harkey, so he called NextGen’s Human Resource Director Jill Burke, who was also at the conference. Id. When Burke arrived in O’Donnell’s room, she repeatedly tried to wake Harkey who, according to Burke was “smell[ing] of alcohol” and “exposing skin.” Id. After several attempts, Burke was finally able to wake a disoriented Harkey. Id.

Thereafter, hotel security escorted Harkey back to her room. Id. She was embarrassed and very apologetic and told Burke that she has had an issue sleepwalking since she was a child and that must have been what happened here. Id. at *3-*4. Harkey also confirmed that O’Donnell did not touch her in his hotel room. Id. at *4.

HR Investigation

As part of her investigation of the incident, Burke asked O’Donnell to write out a statement about what happened. Id. However, O’Donnell was uncomfortable with what he felt were “accusatory-sounding questions” from Burke the night of the incident. Id. Therefore, O’Donnell wanted to speak with an attorney before writing a statement. Id. During his deposition, O’Donnell testified that he was concerned “with how his wife would react to learning about the situation and, more generally, about how it might be interpreted in the ‘Me Too’ era.” Id.

The morning following the incident, Burke met with Harkey in a conference room at the hotel. Id. According to Harkey, while Burke questioned Harkey about the prior evening, Burke stated that Harkey “was in very big trouble,” and “needed to be concerned.” Id. at *4-*5. Harkey told Burke that while it rarely happens, she has sleepwalked since her childhood. Id. at *5. During this conversation, Burke suspended Harkey with pay pending the results of the investigation, and, according to Harkey, told Harkey that she was a “liability” and should “call a doctor.” Id.

Medical Condition and Termination

On October 12, 2018 (one day after the incident), Harkey contacted a physician about an appointment. Id. On October 16, Harkey emailed Burke advising her that she was seeing a doctor the following week. Id. However, on that same day, NextGen terminated Harkey because of her behavior in going to O’Donnell’s hotel room. Id. The following week Harkey’s doctor diagnosed her with somnambulism, also known as “sleepwalking disorder.” Id. 

Did the Employer Overreach?

In September 2019, Harkey filed suit in United States district court against NextGen claiming that she was terminated because of her disability in violation of the Americans with Disabilities Act. Id. at 6. The district court granted summary judgment in favor of NextGen, thereby dismissing Harkey’s suit. Id. Harkey then appealed to the United States Court of Appeals for the Fifth Circuit.

The Fifth Circuit spent little time examining whether Harkey’s sleepwalking was a disability. Instead, the court determined that “[t]he dispositive question . . . is whether Harkey suffered an adverse employment action because of her disability.” Id. at *8. In analyzing this question, the court noted that Harkey’s case was like two prior Fifth Circuit cases.

In one case, an employer terminated an employee with PTSD who had “an angry and profane confrontation with his manager” even though his PTSD likely caused the outburst. There, the court held that the ADA does not protect an employee whose violent and emotionally charged outbursts are the result of an impairment. Id. (See Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047 (5th Cir. 1998)).

In another case, an employer fired an employee whose verbal abuse of his supervisor for denying his leave request was most likely attributable to the employee’s bipolar disorder. Id. at *8-*9. In that case, the court determined that the employee could not avoid responsibility for his own actions because of his disability. Id. at *9 (See Seaman v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999)).

In Harkey’s case, the Fifth Circuit held that the principle outlined in Hamilton and Seaman applied. Regardless of why she did it, Harkey’s behavior in entering a male employee’s hotel room on a business trip while not fully clothed and getting into his bed was inappropriate and unprofessional. Even if her medical condition that results in sleepwalking was the reason for her behavior, “[t]he ADA does not give employees license to act with impunity.” Id. Harkey’s behavior gave NextGen reason to terminate her, and the court held that the ADA was no barrier to that termination. Id. Therefore, in answering the dispositive question noted above, the court determined that Harkey could not show that she was fired because of her sleepwalking disorder. She was in fact fired because of her actions while sleepwalking. Id.

Is a Disabled Employee’s Misconduct Ever Protected by the ADA?

Harkey’s case is illustrative of a foundational principle of the ADA. An employee’s disability does not excuse the employee’s misconduct.

The United States Court of Appeals for the Sixth Circuit also recently addressed this issue when a school district terminated a teacher for using marijuana and for inappropriate communications “with students after being placed on administrative leave and specifically instructed not to discuss her employment or related matters with students.” Lockhart v. Marietta City Schools, 2021 U.S. App. LEXIS 30991 at *29 (6th Cir. Oct. 15, 2021). The teacher argued that her diagnosed “severely limiting mental-condition” caused her behavior and so terminating her for such behavior was tantamount to terminating her because of a disability. Id. at *26, *29. The Sixth Circuit disagreed as follows:

An employer may not rightfully fire an employee for disability-related conduct that is not related to work performance and does not violate some workplace or societal rule. Rather, an employer should tolerate eccentric or unusual conduct caused by the employee’s mental disability, so long as the employee can satisfactorily perform the essential functions of his job.

However, an employer may legitimately fire an employee for conduct, even conduct that occurs because of a disability, if that conduct disqualifies the employee from his or her job.

Id. at *29 (internal citations omitted; emphasis added).

Additionally, the EEOC recognized this principle when it noted that “[a]n employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability” and “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA (2002).

Therefore, employers should not hesitate to enforce workplace rules and to discipline, even up to termination, employees with disabilities who violate those rules regardless of whether a disability may have caused the misconduct.