Federal Court of Appeals Decision Links Conduct to Disability Status
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The United States Circuit Court of Appeals for the Ninth Circuit recently issued a decision in a disability discrimination case which could signal future attempts to extend the meaning of “disability.” In Gambini v. Total Renal Care, Inc., d/b/a Davita, Inc., 2007 U.S. App. Lexis 9290 (9th Cir. 2007), the Court held that employers are prohibited from discriminating against an employee not only on the basis of a personality disorder, but also because of disruptive conduct by the employee which occurs as a result of that disorder. Although the case involved the application of a Washington state statute prohibiting disability discrimination, the Court observed that the law was essentially synonymous with the Americans with Disabilities Act of 1990. Therefore, plaintiffs in other federal cases brought under the ADA may seek to use this decision as the basis for a new claim of disability discrimination.
During her employment with the defendant, the plaintiff was diagnosed with bipolar disorder which caused symptoms such as mood swings, irritability, anger, and lack of concentration. When the plaintiff continued to exhibit these symptoms with increased intensity at work, her supervisors decided to issue the plaintiff a “performance improvement plan” in an effort to correct what they perceived as poor job performance. However, when the plaintiff was presented with the plan, she became upset and began to cry. After reading the plan, she threw it across the supervisor’s desk, used profanity, slammed the door as she left the meeting, and began kicking and throwing things at her cubicle. The following day, the plaintiff checked herself into the hospital, where her bipolar diagnosis was reconfirmed. Meanwhile, the employer conducted an investigation and ultimately decided to terminate the plaintiff’s employment because of her outburst.
The plaintiff subsequently sued the employer for disability discrimination under Washington state law. A jury found in favor of the employer, and the plaintiff appealed on the grounds that the trial court erred by not instructing the jury that “conduct resulting from a disability is part of the disability and not a separate basis for termination.”
On appeal, the Circuit Court reversed the jury verdict and remanded the case back to the trial court for a new trial. The Court concluded that the jury was entitled to infer that the plaintiff’s outburst was a consequence of her bipolar disorder, “which the law protects as part and parcel of her disability.” Thus, according to the Court, an employer cannot fire an employee for poor job performance or conduct if such conduct was due to a mental disability (and reasonable accommodation could have resolved the conduct problem). The Court rejected the defendant employer’s argument that this holding would provide employees with absolute protection from adverse employment actions based on disability-related conduct.
It is uncertain whether the Ninth Circuit’s decision will be accepted and applied by other federal courts. However, employers should certainly be aware of the new legal theory endorsed by the Ninth Circuit as they deal with situations such as that presented in the Gambini case. At a minimum, this case provides employees and their attorneys with a new platform for challenging and attacking an employers’ actions. If in doubt about any situation where this new legal theory could be utilized, employers should always consult their employment attorney for advice.
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