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No Disability Discrimination For Sleepwalking Employee in Co-Worker’s Bed

NextGen hired Jennifer Harkey in 2008. In her decade of work for the company, Carter did not have any performance issues. While attending an out-of-town conference for the company in 2017, Carter had some drinks with a female co-worker and then went to sleep. Around midnight, a male colleague had just returned to his room when Harkey knocked on his door. Scott O'Donnell (O'Donnell), the male colleague, opened the door without checking and found Harkey naked with a robe that fell to her knees. He did not recognize her. O'Donnell stepped back in surprise; Harkey entered the room without looking at him and without saying anything. She went over to his bed and got in. Harkey did not respond when O'Donnell asked her to leave. O'Donnell then called his supervisor to the room, and the supervisor called the company's Human Resources director. The director attempted to wake Harkey up and called security to help get Harkey back to her room. Harkey told the HR director that she must have been sleepwalking and apologized. The next day, the director met with Harkey, asked about the previous evening, and suspended her. Harkey reached out to her doctor and let the company know she was getting medical help. NextGen terminated her employment. Harkey sued NextGen for disability discrimination under the Americans with Disabilities Act (ADA).

The Fifth Circuit Court of Appeals reviewed Harkey’s claims. The court assessed whether Harkey suffered an “adverse employment action because of her disability." According to the court, even if Harkey’s sleepwalking constituted a disability, NextGen fired her because of what she did while sleepwalking. Harkey entered a male colleague’s hotel room late at night, without invitation, and barely clothed. This situation placed the colleague and the company in a difficult position. She acted unprofessionally and inappropriately. The court said, "The ADA does not give employees license to act with impunity." The circuit court held Harkey failed to establish a case under the ADA.