Employers may commonly believe that they can avoid charges of disability discrimination if they discipline or terminate employees for misconduct that violate workplace conduct or performance criteria, even if that misconduct is a result of an employee’s disability. However, employers may want to reconsider such a notion. In a recently issued opinion, the U.S. Ninth Circuit Court of Appeals held that employee misconduct resulting from his/her disability may be protected under the Americans with Disability Act (“ADA”) and state laws.
The Court’s holding in Gambini v. Total Renal Care, Inc. dba DaVita, coupled with its previous decision in Humphry v. Memorial Hospitals Association indicates that employers may not with impunity discipline or terminate employees for misbehavior resulting from a disability.
In Gambini v. Total Renal Care, Inc. dba DaVita the plaintiff in this case, Ms. Gambini, privately informed her supervisors at DaVita that she was struggling with bipolar disorder. Ms. Gambini’s became increasingly irritable and easily distracted. Her managers sought to address the issues related to Ms. Gambini’s performance and behavioral problems. However, during a meeting with supervisors regarding her performance, Ms. Gambini began crying and shaking. She threw the performance plan across the desk and directed several profanities at one of her supervisors. Several days later, Ms. Gambini was terminated. She sent DaVita a letter stating that her behavior at the meeting was a result of her bipolar disorder and asking her employer to reconsider its decision. DaVita refused to rehire Ms. Gambini.
Ms. Gambini filed suit against her former employer and asserted that her conduct was caused by her mental disability. The trial court refused to instruct the jury that “[c]onduct resulting from a disability is part of the disability and not a separate basis for termination.” Eventually, the jury returned with a verdict in favor of defendant, DaVita.
Ms. Gambini appealed the decision to the Ninth Circuit. On appeal, the Ninth Circuit referenced its decision on an earlier case, Humphry v. Memorial Hospitals Association, where it held that “conduct resulting from a disability is considered part of the disability, rather than a separate basis for termination.” The Ninth Circuit noted that a practical application of this holding meant the following: if a terminated employee can demonstrate a causal link between conduct resulting from a disability and his/her termination, a jury must be instructed that it may find that the “employee was terminated on the impermissible basis of her disability.”
The Court wrote that it was “reasonable [to] infer that [Gambini’s] ‘violent outburst’…was a consequence of her bipolar disorder, which the law protects as part and parcel of her disability…if the law fails to protect the manifestations of her disability, there is no real protection in the law because it would protect the disabled in name only.”
However, disability laws, such as the ADA, do not afford absolute protection to dangerous or violent employees. As the Court noted in its opinion in Gambini, the ADA provides for certain protections and defenses to employers, including the “business necessity” or “direct threat” defenses outlined in the law. An employee must be able to perform the essential functions of the job, with or without reasonable accommodation. Furthermore, employers may utilize the defense that proposed accommodations for a disabled individual are not “reasonable” and pose an undue burden on the employer. However, employers should proceed cautiously when attempting to terminate a disabled employee for misconduct if such conduct might be a manifestation of a disability.
For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at (619) 525-7000 or daly@dalylawfirm.co.
