Misconduct May Be Part of a Disability, Ninth Circuit Says

Generally, an employee with a disability may be held to the same standards of conduct and performance as employees without disabilities. The EEOC has said that for years. But what happens when misconduct is caused by the employee's condition? The Ninth Circuit has concluded that firing an employee for misconduct caused by a known disability is the same as firing an employee for having a disability. That means, according to the reasoning of the Ninth Circuit, employers and their individual managers now face liability for disciplining or firing employees who violate basic workplace rules and standards of behavior if the conduct results from a disability.

This is an extraordinary ruling, and one that employers in Alaska, Washington, Oregon, Idaho, Montana, Nevada, Hawaii, California and Arizona must take into account when contemplating discipline or discharge of employees with disabilities.

Employee Fired After Outburst

The case, Gambini v. Total Renal Care, Inc., No. 05-35209 (9^th Cir. Mar. 8, 2007), came before the Ninth Circuit Court of Appeals in its review of the claims of an individual fired after an angry outburst in her workplace.

Stephanie Gambini worked as a clerk for DaVita, Inc., a company that provides dialysis to renal patients. Gambini experienced anxiety and depression, and her supervisors were aware she was diagnosed with bipolar disorder.

Gambini became increasingly irritable and easily distracted, and had a hard time concentrating on her work. At about the same time, her supervisors became concerned about poor job performance and attitude. When a meeting was arranged to present a written performance improvement plan, Gambini arrived in an agitated state and soon began to cry. When the plan was presented, she threw it across the desk and, with a flourish of obscenities, stated that it was both unfair and unwarranted. Before stomping out and slamming the door, she also directed several profanities at one of her supervisors and allegedly threatened that the two supervisors "will regret this." A few minutes later, Gambini was observed kicking and throwing things in her work cubicle.

The next day Gambini reported to a hospital and DaVita provisionally approved a leave under the Family and Medical Leave Act (FMLA). It also began an investigation of Gambini's conduct in reaction to the performance improvement plan. Other employees expressed concerns about Gambini's behavior, and one requested that she not be permitted to return to the workplace. Approximately a week after Gambini's outburst, DaVita ended Gambini's employment. She asked for reconsideration, claiming that her behavior had been a consequence of her bipolar disorder. When DaVita refused to reconsider, Gambini filed a lawsuit, contending that her employment had been terminated because of her disability, in violation of Washington law. At a jury trial, DaVita prevailed, and Gambini appealed.

But Outburst Was Caused By Disability

On appeal, Gambini argued that the jury had not been given a proper instruction on her disability claim. She contended that the jury should have been instructed that "conduct resulting from a disability is part of the disability and not a separate basis for termination." At DaVita's urging, the trial court had declined to give that direction to the jury.

On review, the Ninth Circuit concluded that Washington law was consistent with the American with Disabilities Act (ADA) in this respect and that, under both federal and Washington law, the trial court's failure to permit the jury to link conduct resulting from Gambini's disability (i.e., her workplace outburst) with the disability itself (i.e., her bipolar condition) required that the jury verdict be reversed and the claim remanded for a new trial.

A Trap Has Been Set – Don't Walk Into It

This decision is a tough one for employers in all states where Ninth Circuit decisions control disability claims. The reality is that employees have come to frequently raise medication and health issues when confronted with bad performance or misconduct.

When employers are dealing with the unacceptable conduct of an employee with a known disabling condition, they will need to consider whether the misconduct is "part of" the disability – before implementing the discipline. Often, this will not be an easy question to answer, particularly given the limited medical information an employer is allowed to have. Where there is a connection, the employer should, at the least, explore whether it failed to provide a reasonable accommodation that could have prevented the misconduct. An employer's failure to provide requested reasonable accommodation should, in many circumstances, lead the employer to look at alternatives to discipline. An interactive exchange of information between the employee and the employer about reasonable accommodation options is one course that an employer may need to try before taking disciplinary action or discharge. It is unclear how far an employer must go in excusing misconduct caused by a disability, particularly if no accommodation had been requested that might have prevented the conduct.

Because this decision is so counterintuitive, and apparently contrary to both federal and state disability discrimination laws, it creates a trap for unwary employers. Neither the EEOC nor authoritative sources of the law provide any clear guidelines for safe, compliant action in these situations. Thus, unless and until the law is changed or clarified, before disciplining or discharging an employee with a known medical condition, you should seriously consider talking with the employee as you gather the facts and try to solve the work-related problem. Meanwhile, work closely with your employment lawyer, keeping him or her apprised of the facts as you gather them.