Whether an employment decision that is based on conduct caused by a qualified individual's disability is insulated from scrutiny under the federal disability discrimination statutes on the ground that the decision is not made on the basis of disability

QUESTION PRESENTED The Rehabilitation Act of 1973 and the Americans with Disabilities Act generally prohibit employment discrimination against qualified individuals on the basis of disability. 29 U.S.C. § 794(a) and (d); 42 U.S.C. § 12112(a). In applying these federal disability discrimination statutes, the courts of appeals have disagreed with respect to the proper treatment of employment decisions that are based on conduct caused by an employee’s or applicant’s disability. In such cases, which arise with some frequency, the employer will typically contend that the plaintiff’s conduct—often labeled as “misconduct”—is conceptually distinct from the plaintiff’s underlying disability and thus provides a lawful, non-discriminatory basis for the employment action in question. In the decision below, the Fourth Circuit endorsed that purported distinction, which also finds support in the Fifth Circuit’s precedent. Four courts of appeals, however, have reached precisely the opposite conclusion. The question presented is whether an employment decision that is based on conduct caused by a qualified individual’s disability is insulated from scrutiny under the federal disability discrimination statutes on the ground that the decision is not made on the basis of disability. @