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BI-POLAR EMPLOYEE’S PROFANE OUTBURSTS
MAY BE PROTECTED BY DISABILITY LAWS

The Ninth Circuit Court of Appeals recently held that a bi-polar woman terminated after a “flourish of several profanities” directed at supervisors during a performance evaluation may prevail in a disability discrimination claim under Washington law.  Gambini v. Total Renal Care, Inc., 2007 U.S. App. LEXIS 9290 (May 1, 2007).  

The Gambini court relied on prior Americans with Disabilities Act (“ADA”) decisions to conclude that firing an employee for misconduct caused by a disability is the same as firing an employee for having a disability.  This case illustrates the risk of liability for employers who discipline or terminate employees for violating workplace standards of behavior if their conduct results from a disability.

The Law

Under Washington law (as with comparable provisions of the ADA and the California Fair Employment and Housing Act (“FEHA”)), it is unlawful for an employer to terminate an otherwise qualified individual because of the employee’s disability.

An otherwise qualified individual with a disability is someone who, with or without reasonable accommodation, can perform the essential functions of the job.  Even if the employee is otherwise qualified, however, the employer is permitted in some cases to terminate an employee if accommodation would constitute an “undue burden,” or if the employee poses a “direct threat” to the health and safety of others in the workplace.  See generally 42 U.S.C. §§12111-12113 (ADA).

Gambini v. Total Renal Care

The plaintiff in Gambini was a contract clerk at a dialysis company.  Gambini had been diagnosed with bi-polar disorder, and had discussed her psychiatric condition and medications with several members of the employer’s management team.

Gambini’s managers were concerned about her job performance.  The managers scheduled a meeting, and delivered a “written performance improvement plan” for Gambini’s review.  When Gambini finished reading the document, she “threw it across the desk and in a flourish of several profanities expressed her opinion that it was both unfair and unwarranted.  Before slamming the door on her way out, Gambini hurled several choice profanities at [her immediate supervisor]” … Gambini was later observed “kicking and throwing things at her cubicle.”  She left work the next day and filed the paperwork for medical leave under the Family and Medical Leave Act (“FMLA”).  Three days later, the employer notified Gambini that it had terminated her employment due to her inappropriate behavior at the performance meeting.

Gambini filed a lawsuit alleging, among other things, that she was an otherwise qualified individual who was improperly terminated “because of” her disability in violation of Washington law.  The employer argued that it had not terminated Gambini “because of” her disability.  Rather, she had been terminated due to the profane outbursts she directed at her supervisors.  The court determined, however, that it could not separate Gambini’s conduct from the underlying disability.  Specifically, the court held that if a jury found Gambini’s conduct “was caused by or was part of her disability, it could then find that one of the ‘substantial reasons’ she was fired was her bi-polar condition.”  In other words, firing an employee for misconduct caused by a disability is functionally the same as firing an employee for having a disability. 

The one bright spot for employers -- the court upheld judgment in favor of the employer on Gambini’s FMLA claim.  Although the FMLA generally confers a right to reinstatement for an employee who takes up to 12 workweeks of leave in a 12 month period for a serious medical condition such as bi-polar disorder, the employer “may still terminate an employee during her leave if the employer would have made the same decision had the employee not taken leave.”  29 U.S.C. §2614(a).  Because the employer offered “unrefuted evidence that it would have terminated Gambini for her conduct regardless of whether she had taken her FMLA leave,” judgment for the employer was proper.

Practical Tips

The reasoning of Gambini may be sound, but its application is challenging for employers.  This is particularly true in California, where nearly any physical or mental impairment qualifies as a legal disability.  Using the Gambini standard, employers must carefully consider whether employee misconduct may be attributable to a known mental or physical condition before taking disciplinary action.  If a potential disability is involved, the employer will need to engage in an interactive process to determine whether the employee’s misconduct can be addressed through reasonable accommodation.

There are, of course, limits to the types of behavior an employer can or should accommodate.  An employee must be able to perform all essential job functions (which includes the ability to get along with co-workers) once accommodation is provided.  For some employees, there may not be a reasonable accommodation that will permit the performance of all essential job functions. 

Additionally, in some cases employers may rely on “undue hardship” as a defense to providing a particular accommodation, or assert the right to terminate an employee who poses a “direct threat” to the health and safety of co-workers.  These are extremely technical legal defenses, however, that require the careful analysis of experienced Human Resources Managers and employment counsel.