Gambini v. Total Renal Care, Inc., No. 05-35209 (9th Cir. Mar. 8, 2007), illustrates the breadth of Washington’s disability discrimination laws. In Gambini, the Ninth Circuit held that the trial court should have issued a jury instruction that “[c]onduct resulting from a disability is part of the disability and not a separate basis for termination.” Employee misconduct is now arguably protected by Washington state’s anti-discrimination statute when it is “part and parcel” of an employee’s disability.
Factual Background
Stephanie Gambini worked as a contracts clerk for DaVita, Inc., a company that provides dialysis to renal patients. Gambini suffered from bipolar disorder, which caused her to experience depression, anxiety, and at least one emotional breakdown at work. Gambini notified her supervisors of her condition, that she was seeking treatment, and that she was struggling with medication-caused symptoms, including mood swings. Over time her symptoms worsened and her job performance suffered. Gambini admitted to at least one coworker that she was struggling to perform her job because of her symptoms.
When confronted by her supervisors regarding her performance issues, Gambini erupted in an emotional outburst: she cried, threw the performance improvement plan across the desk, directed a “flourish of several profanities” at her supervisors, and continued kicking and throwing things once she returned to her cubicle. Gambini reported to a hospital the next day and DaVita provisionally approved a leave of absence under the Family Medical Leave Act. However, following an investigation of the incident, DaVita terminated Gambini on the basis that her violent outburst violated workplace conduct rules. Gambini requested that DaVita reconsider their termination decision. Gambini thereafter filed a lawsuit alleging that her behavior was caused by her disabling condition and therefore she was terminated because of her disability. The jury found for DaVita, and Gambini appealed to the Ninth Circuit.
The Court’s Decision
The Ninth Circuit, which has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, agreed with Gambini, ruling that the jury should have been instructed that they could connect conduct resulting from Gambini’s disability to her disability itself. The Court based its decision on both Washington’s Law Against Discrimination and the Americans with Disabilities Act (ADA). However, the Court’s interpretation of the ADA is unprecedented in other federal Circuit Courts of Appeals, some of which have even issued conflicting decisions in the past. Even so, employers in Washington, as well as those in other states within the Ninth Circuit’s jurisdiction, will need to take this ruling into account.
What Does This Mean for Employers?
Employers should proceed with caution whenever contemplating discipline or discharge of an employee for misconduct associated with a known disability. Employers must now consider whether an employee’s misconduct is “part” of a known disability. If the misconduct and disability are connected, employers should then engage in an interactive process with the employee to explore whether a reasonable accommodation could prevent the misconduct. Gambini instructs that termination or other discipline is appropriate only when the employer has already provided a reasonable accommodation, or when a reasonable accommodation is unlikely to prevent future misconduct.
Originally appeared in Dorsey's Employment Law Update