With increasing frequency, employees are relying on disabilities to excuse work-related misconduct. While we’ve been writing about this for years (some suggested that my 2011 post “To What Extent Are California Employers Required To Accommodate Violent Nutjobs” was insensitively titled), a recent decision out of California takes the cake, or in this case, the bag of potato chips.

As reported earlier this month by Mary Kissel in the Wall Street Journal‘s Political Diary (subscription required), Walgreens fired an employee for helping herself to a bag of potato chips without paying. The employee argues that she is diabetic and needed the chips because of low blood sugar. She says she went to pay for them later but no one was around. (The Walgreens I go to always seem to have cashiers around. Taking money for the stuff you buy seems to be a key aspect of their business model.)

Well the EEOC apparently thinks that its time someone stood up for the rights of potato chip thieves and filed suit. Rather than settling (which is usually cheaper than battling government agencies in court), Walgreens took a stand. It said it loses over $350 million each year to employee theft and needs to be able to enforce a neutral, nondiscriminatory policy prohibiting that conduct. But when it asked the court to toss the case on summary judgment, the court declined to do so, putting Walgreens in the unenviable position of letting a jury weigh the rights of a large corporation against those of a terminated individual.

These disability misconduct decisions follow no particular pattern. So it may be a long time before employers have clear guidance on where their obligation to accommodate disabilities gives way to their right to enforce basic standards of behavior. Like so much of the law in this area, employers are told to make individualized determinations based on the impairment, the nature of the job, and the work environment, but given little guidance on how to do so.

I’ll be giving a webinar on this topic and other reasonable accommodation issues on May 6th. You can get more information here. Sadly, because it’s a webinar, you’ll have to provide your own snacks.