Friday, June 15, 2007

Does ADA Protect All Misconduct Stemming from Disability?

Scale_of_justice The Ninth Circuit has issued a controversial decision (surprise!) about how the Americans with Disabilities Act (ADA) should treat disability-related misconduct.

In Gambini v. Total Renal Care, Inc., No. 05-35209 (9th Cir. 2007), the court considered the outburst of a bi-polar employee that led to her termination. Here's a summary of the case from

The case involved an employee with bipolar disorder who was fired following a violent and profane outburst during a performance meeting. The employee claimed the discharge violated Washington State disability bias law. The employer argued that it legitimately terminated her for misconduct, disability or no disability.

The 9th Circuit ruled that the state law protected not only the disability, but also manifestations of the disability. Thus, if the conduct was caused by the disability, a jury could find that the disability was a reason for the discharge . . .

[E]ven though this new case was decided under Washington state law, the 9th Circuit's opinion sends a disturbing message that it would interpret the ADA similarly.

It does seem that qualified individuals with a disability should not get complete immunity for all bad behavior because of their disability. Indeed, special education children under the IDEA Act may be disciplined, albeit while still receiving services, for engaging in conduct caused by their disability.

I think not only does an ADA case need to be examined to determine whether the disability actually caused the misconduct, but whether the employee had undertaken any mitigating measures in the meantime to make future occurrences less likely.  Seems that an all-or-nothing approach does not work well in cases like this, as an employer must be able to terminate disabled employees under appropriate circumstances without facing liability.


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Applying Washington state disability-rights law, the Ninth Circuit has ruled that an employee's "violent and profane" outburst to supervisors may be a protected manifestation of her bipolar disorder and thus not grounds for termination. Although... [Read More]

Tracked on Jul 12, 2007 8:16:23 PM


Once again the 9th Circuit demonstrates why it has gained the reputation it has. Based upon this precedent the same outcome would have ensued if, instead of an outburst, the employee had stabbed her supervisor in the neck with her ballpoint pen and killed him. She could have argued with equal force that the murder was a manifestation of her disability. And the 9th Circuit, noting that the is no explicit "direct threat" provision in Washington discrimination law corresponding to the ADA provision, and refusing to find one implied, would apparently smile benignly and agree.

A ridiculous ruling and, although based upon state rather than federal ADA, clearly contrary to basic ADA principles. Despite the fact that courts have held that Washington state disability discrimination law, like that of most states, is intended to correspond to federal discrimination law principles.

I would be willing to bet, however, that the Washington state legislators who enacted the state laws did not intend this sort of outcome.

And Professor, I am disturbed by your lukewarm rsponse to this outrageous decision. You think not all bad behavior should be protected by discrimination laws? Why should ANY such behavior be excused under disability law? And what difference does it make if the employee was taking measures to control the behavior? To force employers to continune to employ people who behave like this is proof that we have entered a legal topsy-turvy world. The intent of laws like the ADA was to reach a balance between employers' interests and the interests of qualified individuals with a disability. Not to make insane people immune from suffering any consequences for their behavior.

I would submit that you should also be outraged because rulings like this will only result in legislatures rolling back legal protections for disabled employees, harming those whom the laws were actually intended to protect.

Here's something else to consider as well. I would virtually guarantee that an employee in the state of Washington with no previous history of mental illness could behave the way this employee did, and then find a psychiatrist to diagnose him/her as suffering from some latent form of bi-polar disorder. The employee could then apparently argue that he/she is protected from discipline or termination by virtue of the Washington state disability statutes. Presto! Employees in Washington now have license to behave like lunatics at work and suffer no adverse consequences.


Posted by: Publius | Jun 16, 2007 10:37:25 AM

Rather than being some political decision, the "take away" from the opinion is the proposed instruction noted in the case's final footnote: "An employer cannot fire an employee for poor job performance if the poor job performance was due to a mental disability and reasonable accommodation plausibly would have rectified the performance problem."

"Publius" may be outraged, but the ADA's accommodation requirement requires not identical treatment toward the disabled, but "better" treatment (i.e., the opinion says: "identical treatment is often not equal treatment with respect to disability discrimination.")

The point is that employers cannot blindly follow standardized rules, but must (for disabled workers) consider whether their disability (and attendant misconduct) can be accommodated. Those seeking certainty might be bothered by the ad hoc nature of the necessary analysis, and troubled that an employer must consider accommodating a mental disability (and the tardiness, disruption, or expense it may add). That's the law, though.

Moreover, "Publius'" threat about post-misconduct psych report is unmerited. Without advance knowledge of a mental disability, the employer CANNOT discriminate against it. The cases finding a limit on disciplining the disabled ALWAYS include the employer's being aware of the employee's disability BEFORE the discipline is imposed.

Posted by: kent | Jun 18, 2007 4:37:06 PM

I never said this was a "political" decision. I think the pivot point of this decision was the court's silly refusal to imply a "direct threat" provision under Washington law. The direct threat defense acts as a common sense limiter on situations such as this one, where you have a misbehaving employee (to put it mildly) and other employees who are downright frightened to work alongside her. To punish employers who act to put a stop to this sort of situation is just bad public policy.

I know what the law says about accommodation and misbehavior like this is not necessarily protected under the ADA. It is very fact and context driven. My larger point, though, was not what the law says, but what is SHOULD say. I submit that when the law forces an employer to retain a person who behaves like this one, something has gone badly askew in the public policy department.

As for the post-conduct psych report issue, I will grant you that there are not many decided cases out there at the moment exemplifying my fears, but I would remind you that the cases that have considered the issue have not completely foreclosed the notion of an employer's potential obligation to accommodate a disabled person where the employer has not been formally notified of the disability before the firing, but where the disability is deemed obvious. As it is, if an employee has an obvious disability (such as using a wheelchair) the employer's duties are triggered. Is it that far a reach to imagine the 9th Circuit extending that principle to a person who behaves so erratically that the court decides that any reasonable employer would know, or should know that she MUST have had a mental disability? I don't think so. And, don't forget that the employee would also have a "regarded as" claim to pursue.


Posted by: Publius | Jun 22, 2007 8:58:09 PM

How long will we continue to accept such nonsense from our government/legislators???? How long before we refuse to accept this belittlement and lesser treatment?

Posted by: Cynthia | Nov 9, 2009 11:51:24 AM

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