AFTER GAMBINI, IS WORKPLACE MISCONDUCT
CAUSED BY AN EMPLOYEE’S DISABILITY
PROTECTED?
Sarah Rajski*
I.
II.
A.
B.
III.
A.
B.
C.
D.
E.
IV.
A.
B.
C.
D.
V.
A.
B.
C.
VI.
*
Introduction .............................................................. 24
History of the Americans with Disabilities Act (ADA) 25
The ADA Amendments Act (ADAAA) ....................... 27
Coverage Under the ADA ........................................ 28
Reasonable Accommodation ................................... 30
Overview .................................................................. 30
Undue Hardship Defense ......................................... 32
Engaging in the Interactive Process ......................... 33
Employee Discipline and Misconduct ....................... 34
Direct Threat Exception ............................................ 37
Gambini v. Total Renal Care .................................... 39
Lower Court Decision ............................................... 39
Appellate Court Decision .......................................... 41
Additional Support for Gambini ................................ 44
Post-Gambini Decisions ........................................... 45
Discussion: Notice and Reasonable Accommodation
by Employer is Key .................................................. 46
Employer Must Have Prior Notice of Disability ......... 46
Employer‘s Obligation to Provide Reasonable
Accommodation ....................................................... 48
Guidance for Employers and Employees ................. 51
Conclusion ............................................................... 58
J.D., Seattle University School of Law, 2011.
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I.
Introduction
In the 2007 case of Gambini v. Total Renal Care, the
Ninth Circuit Court of Appeals found that an employer may
not be able to terminate the employment of an employee for
misconduct if the misconduct is related to or caused by the
employee‘s disability.1 The court concluded that firing an
employee for misconduct caused by a known disability, in
this case a profanity-laden cubicle tantrum, was the same as
firing an employee for having a disability.2 The court based
its decision on both Washington‘s Law Against
Discrimination and the Americans with Disabilities Act
(ADA).3 However, the Ninth Circuit Court of Appeal‘s
interpretation of the ADA is unprecedented in other federal
circuit courts, some of which have issued decisions directly
in conflict by supporting the discipline of an employee with a
disability for workplace misconduct.4
Although the court‘s decision in Gambini may initially
appear to bar employers from disciplining or terminating a
disruptive employee with a disability, upon a closer reading it
appears the key to the employer is prior notice of such a
disability and possible need for reasonable accommodation.
The Ninth Circuit Court of Appeals, in Gambini, repeatedly
emphasized that the employer was aware of the Ms.
1
Washington State Human Rights Commission, Guidance from the
Washington State Human Rights Commission Regarding the Decision in
Gambini v. Total Renal Care, Nov. 21, 2007, at 2,
http://www.hum.wa.gov/TechAssistance/Index.html
[hereinafter
Guidance].
2
Misconduct May Be Part of a Disability, Ninth Circuit Says, PERKINS
COIE
–
NEWS/PUBLICATIONS,
March
22,
2007,
http://www.perkinscoie.com/news/pubs_detail.aspx?publication=1300.
3
Gambini v. Total Renal Care, 486 F.3d 1087 (2007).
4
Carllene M. Placide & Jennifer Berry, Ninth Circuit Rules Employee‘s
Misconduct Is Not Basis For Termination When Related To A Disability,
MONDAQ,
July
30,
2007,
http://www.mondaq.com/united
states/article.asp?articleid=50864.
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DISABILITY GALAXY LAW REVIEW
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Gambini‘s bipolar disorder and its potential effect on her
conduct in the workplace. Accordingly, in evaluating future
situations and how closely an employer‘s fact pattern
matches Gambini and subsequent cases, an employer must
walk a tight line between not discriminating against an
employee with a disability and providing a safe and
productive work environment for all.
This Paper explores the importance of notice to an
employer of an employee‘s disability and proposes solutions
that should be reviewed and adopted by both employers and
employees when responding to workplace misconduct. Part
II contains an overview of the Americans with Disabilities Act
(ADA), as well as the ADA Amendments Act of 2008
(ADAAA). Part III analyzes reasonable accommodation and
its various requirements, defenses, and exceptions. Part IV
explores the Gambini v. Total Renal Care decision and
provides an explanation about the need for further judicial
clarification. Part V provides guidance and suggestions for
employers in addressing workplace misconduct and for
employees who have a disability that may affect their work
performance. To conclude, Part VI summarizes this Paper
in support of a notice element and subsequent reasonable
accommodation as key for determining whether employers
can be found liable for discriminating against an employee
with a disability when disciplining the employee for
workplace misconduct.
II.
History of the Americans with Disabilities Act
(ADA)
In 1990, Congress passed the Americans with
Disabilities Act (ADA)5 in an effort to address, as stated in its
5
42 U.S.C. § 12101 (1990). Prior to the enactment of the ADA, the
major piece of federal legislation prohibiting employment discrimination
on the basis of mental and physical disability was the Federal
Rehabilitation Act of 1973. 29 U.S.C. § 793 (1993). See also Joel WM.
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declaration of legislative purpose, the ―major areas of
discrimination against individuals with disabilities.‖6 The
ADA provides that one of its
purposes is to ―provide a clear and comprehensive national
mandate for the elimination of discrimination against
individuals with disabilities.‖7
The ADA gives civil rights protections to individuals
with disabilities similar to those provided to individuals on the
basis of race, color, sex, national origin, age, and religion.8 It
guarantees equal opportunity for individuals with disabilities
in public accommodations, employment, transportation, state
and local government services, and telecommunications.9
Specifically, in the context of employment, the ADA prohibits
discrimination in all employment practices, including job
application
procedures,
hiring/recruitment,
firing,
advancement, compensation, training, and other terms,
conditions, and privileges of employment.10
The ADA defines the term ―disability,‖ with respect to
an individual to mean a ―physical or mental impairment that
substantially limits one or more of the major life activities of
such individual.‖11 It also includes having a ―record of‖ such
FRIEDMAN, THE LAW OF EMPLOYMENT DISCRIMINATION: CASES AND
MATERIALS 891 (7th ed. 2009).
6
FRIEDMAN, supra note 5, at 891; 42 U.S.C. § 12101 (1990) – Findings
and Purpose.
7
42 U.S.C. § 12101(b)(1) (1990). Another purpose outlined by the ADA
is “to provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities.‖ Id.
8
U.S. Equal Employment Opportunity Commission, Americans With
Disabilities Act: Questions and Answers, Nov. 14, 2008,
http://www.ada.gov/q%26aeng02.htm.
9
Id.; 42 U.S.C. § 12101 (1990).
10
42 U.S.C. § 12112(a) (2000); 42 U.S.C. § 12112(b)(1)–(7) (2000).
Title I of the ADA covers private, state, and local government employers
with 15 or more employees. Additionally, other privileges of employment
may include tenure, layoff, or leave.
11
42 U.S.C. § 12102(2)(A) (2000).
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DISABILITY GALAXY LAW REVIEW
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an impairment, or being ―regarded as‖ having such an
impairment.12
Additionally, the ADA charged several federal
agencies with developing regulations. It is important to note
that the Equal Employment Opportunity Commission
(EEOC) was tasked with issuing regulations interpreting,
implementing, and enforcing the employment provisions
under Title I of the ADA.13 The EEOC and the Department
of Justice, as well as private individuals, were given
enforcement authority, following the powers, remedies, and
procedures of the Civil Rights Act of 1964.14
A.
The ADA Amendments Act (ADAAA)
On September 25, 2008, President George W. Bush
signed the ADA Amendments Act of 2008 into law.15 The
ADA Amendments Act (―ADAAA‖) states that the definition of
disability should be construed in favor of broad coverage of
individuals under the ADA and this generally shall not
require extensive analysis.16 Effective January 1, 2009, the
ADAAA also expanded the scope of ADA coverage to more
people, responding to prior restrictive Supreme Court
decisions that severely limited the coverage of the Act.17
12
42 U.S.C. § 12102(2)(B),(C) (2000).
42 U.S.C. § 12116 (2000).
14
42 U.S.C. § 12117(a) (2000). Although outside the scope of this
Paper, individuals who believe they have been subject to employment
discrimination must file a charge of discrimination with the EEOC within
180 days (or 300 days if there is a state antidiscrimination law) of the
violation. The individual then must await a ―right to sue‖ letter from the
EEOC before they can pursue their claim in court. Id. at § 12117(a); §
2000e-5(e).
15
42 U.S.C. § 12101 (et seq.) (2008).
16
U.S. Equal Employment Opportunity Commission, Notice Concerning
The Americans With Disabilities Act (ADA) Amendments Act of 2008,
http://www.eeoc.gov/laws/statutes/adaaa_notice.cfm (noting such broad
coverage to the maximum extent permitted by the terms of the ADA).
17
PETER BLANCK, EVE HILL, CHARLES D. SIEGAL, & MICHALE WATERSTONE,
DISABILITY CIVIL RIGHTS LAW AND POLICY: CASES AND MATERIALS 43 (2d.
13
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While the ADAAA retained the ADA‘s existing definition of
―disability,‖ it further defined and clarified several terms as
well as adding several standards that must be applied when
considering the definition of ―disability.‖18
For the first time, the ADAAA also specifically
provides a broad, non-exclusive list of conditions that should
always be considered major life activities.19 The ADAAA
states that ―major life activities include, but are not limited to,
caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.‖20
B.
Coverage Under the ADA
The ADAAA did not change the three basic
requirements of a ―disability,‖ which include: (1) a physical or
mental impairment; (2) a substantial limitation; and (3) a
major life activity.21 The determination of whether an
individual‘s impairment substantially limits a major life activity
Ed. 2009). In seeking to restore the original congressional intent to
provide a broad definition of disability, the ADAAA specifically rejects the
Supreme Court‘s decisions in Sutton v. United Air Lines, Inc., 527 U.S.
471 (1999) and Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S.
184 (2002). Id. at 71.
18
President Signs ADA Amendments Act of 2008 into Law, September
28,
2008,
HR
TOOLS,
http://www.hrtools.com/news/alerts/president_signs_ada_amendments_
act_of_2008_into_law.aspx (The law rejects Supreme Court precedent
holding that the terms ―substantially‖ and ―major‖ in the definition of
disability must be ―be interpreted strictly to create a demanding standard
for qualifying as disabled,‖ as well as the Court‘s interpretation that
―substantially limits‖ means ―prevents or severely restricts.‖).
19
The ADA Amendments Act of 2008 (ADAAA), S. 3406 § 3 (2008).
20
Id. (emphasis added). Furthermore, the ADAAA specifically notes that
an ―impairment that substantially limits one major life activity need not
limit other major life activities in order to be considered a disability.‖ Id.
at S. 3406 § 4(a).
21
42 U.S.C. § 12102(2)(A) (2000).
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requires an individualized inquiry.22
In the context of
employment, most courts analyze whether any major life
activity is affected, and not whether the impairment must
actually affect the individual‘s ability to work in order to be
covered under the ADA.23
Additionally, as an initial matter it is important
remember that to be qualified under the ADA, an individual
must: (1) have the requisite skills, experience, education,
licenses, and other job-related requirements; and, (2) be
able to perform the essential functions of a position, either
with or without reasonable accommodation.24 The ―essential
functions‖ are the most important job duties, which include
the critical functions or requirements that must be performed
to achieve the objectives of the job. 25 Given their nontangential nature, the removal of an essential function would
fundamentally alter the job.26
Courts have generally adopted the EEOC‘s
framework for analyzing when a job function is ―essential.‖27
The EEOC has said that a function may be essential
22
BLANCK, supra note 17, at 81. The EEOC has stated, and most courts
agree, that employment decisions must be based on the person‘s ability
to currently perform the job, not whether the person might be unable to
perform the job at some point in the future. 29 C.F.R. § 1630.2(m)
(2007).
23
David K. Fram, Resolving ADA Workplace Questions, 29 NAT‘L EMP‘T
LAW INST., at I-50 (2010).
24
42 U.S.C. § 12111(8) (2000); 29 C.F.R. § 1630.2(m) (2007). In Bates
v. UPS, Inc., the court noted that the employer must ―put forth evidence
establishing‖ which functions are essential (because this information ―lies
uniquely‖ with the employer‖), and the employee ―bears the ultimate
burden of persuading the fact finder that he can perform the job‘s
essential functions.‖ 511 F.3d 974 (9th Cir. 2007).
25
The U.S. Equal Employment Opportunity Commission, The Americans
With Disabilities Act: Applying Performance and Conduct Standards to
Employees, Oct. 14, 2008, http://www.eeoc.gov/facts/performanceconduct.html (hereinafter Applying Standards).
26
Applying Standards, supra note 26.
27
Fram, supra note 23, at II-7.
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because: (1) the position exists to perform the function; (2)
there are a limited number of employees available how could
perform the function; or (3) the function is highly
specialized.28 If an employee cannot meet a specific jobrelated requirement (also known as a ―qualification
standard‖) because of a disability, the ADA requires the
employer to demonstrate the importance of that requirement
by showing it is ―job-related and consistent with business
necessity.‖29 Courts have routinely held that ―ability to get
along with others,‖ ―ability to handle stress,‖ and ―mental
stability‖ are essential functions of a job, and the ability to get
along with others will be required to perform many jobs.30
III.
Reasonable Accommodation
A.
Overview
One of the most important statutory requirements of
the ADA is the duty to provide reasonable accommodations
to qualified individuals with disabilities.31 A reasonable
accommodation is any change in the work environment or in
the way things are customarily done that enables an
employee with a disability to enjoy equal employment
opportunities.32 Therefore, an employer may have to provide
a reasonable accommodation to enable an employee with a
disability to meet a qualification standard that is job-related
28
29 C.F.R. § 1630(n)(2) (2007) (Definition: (n) Essential functions —(1)
In general. The term essential functions means the fundamental job
duties of the employment position the individual with a disability holds or
desires.). The term ―essential functions‖ does not include the marginal
functions of the position. Applying Standards, supra note 26.
29
42 U.S.C. §§ 12112(b)(6), 12113(a) (2000); 29 C.F.R. §§ 1630.10,
1630.15(b)(1) (2007).
30
Fram, supra note 23, at II-17; see also Lloyd v. Swifty Transportation,
Inc., 552 F.3d 594 (7th Cir. 2009).
31
Fram, supra note 23, at III-1.
32
Applying Standards, supra note 26.
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and consistent with business necessity or to perform the
essential functions of the position.33
Unlike other antidiscrimination laws, the Supreme
Court has expressly ruled that reasonable accommodations
can involve ―preferences‖ for an employee with a disability,
so that the employee can ―obtain the same workplace
opportunities that those without disabilities automatically
enjoy.‖34
The Supreme Court explained such an
accommodation is one that ―seems reasonable on its face,
i.e., ordinarily or in the run of cases.‖35 Additionally, EEOC
regulations state that ―reasonable accommodation means . .
. [m]odifications or adjustments . . . that enable a qualified
individual with a disability to perform the essential functions
of [a] position.‖36
The
general
idea
concept
of
reasonable
accommodation involves the removal of workplace
barriers.37 Workplace barriers can take many forms, such as
physical obstacles that include inaccessible facilities or
workplace procedures and rules that include how tasks are
accomplished.38 For example, the definition of reasonable
accommodation in the ADA includes:
(ii) Modifications or adjustments to the work
environment, or to the manner or
circumstances under which the position
held or desired is customarily performed . .
.; or (iii) Modifications or adjustments that
33
42 U.S.C. § 12112(b)(5)(A) (2000); 29 C.F.R. § 1630.09(a) (2007).
U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 398 (2002). In U.S.
Airways, Inc. v. Barnett, the Supreme Court continued this explanation
and stated that such accommodations ―will sometimes require affirmative
conduct to promote entry of disabled people into the workforce. They do
not, however, demand action beyond the realm of reasonable.‖ 535 U.S.
at 401.
35
Id.
36
29 C.F.R. § 1630(o)(ii) (2007) (emphasis added).
37
Fram, supra note 23, at III-1.
38
Fram, supra note 23, at III-1.
34
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enable a[n] . . . employee with a disability to
enjoy equal benefits and privileges of
employment as are enjoyed by its other
similarly situated employees without
disabilities.39
The ADA continues on to provide examples of what a
reasonable accommodation may include, in a nonexhaustive list: making facilities readily accessible to and
useable by individuals with disabilities; job restructuring;
reassignment to a vacant position; modifications of
equipment; and appropriate adjustments of policies.40
B.
Undue Hardship Defense
Employers do not have to provide an accommodation
to an employee that causes an ―undue hardship.‖41 An
―undue hardship‖ means significant difficulty or expense in
providing the accommodation, which also includes removing
an essential function of the job.42 Generalized conclusions
by the employer will not be sufficient in an attempt to prove
an undue hardship claim.43 Rather, this analysis focuses on
the particular employer‘s resources, based on an
39
29 C.F.R. § 1630(o) (2007).
Id.
41
Fram, supra note 23, at III-103. In the context of disability
discrimination, the employer‘s failure is defined by ―not making
reasonable accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability . . . unless [the]
covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of the business of such covered
entity.‖ 42 U.S.C. § 12112(b)(5)(A) (2000).
42
42 U.S.C. §§ 12111(10), 12112(b)(5)(A) (2000); 29 C.F.R. §§
1630.2(p), 1630.9(a) (2007).
43
The U.S. Equal Employment Opportunity Commission, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under The
Americans
With
Disabilities
Act,
Oct.
17,
2002,
http://www.eeoc.gov/policy/docs/accommodation.html
[hereinafter
Reasonable Accommodation].
40
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individualized assessment of current circumstances and on
whether the accommodation is unduly extensive, substantial,
or disruptive, or would fundamentally alter the nature or
operation of the business.44 The undue hardship defense is
dependent on the size of the employer and the requested
accommodation, and can be difficult to prove.45
C.
Engaging in the Interactive Process
Generally, an employee must request an
accommodation.46 The EEOC stated, ―it is the responsibility
of the individual with a disability to inform the employer that
an accommodation is needed.‖47 However, an employee
need not use the term ―reasonable accommodation‖ or even
―accommodation,‖ but an employee need only say that he or
she requires the employer to provide an adjustment or
change at work due to a medical condition.48 Additionally,
courts often agree that an employer must know about an
employee‘s disability in order to be liable for failing to provide
44
42 U.S.C. § 12111(10) (2000); 29 C.F.R. § 1630.2(p) (2007). See 29
C.F.R. pt. 1630 app.;
§ 1630.15(d) (1996); see also Stone v. Mount Vernon, 118 F.3d 92, 101
(2d Cir. 1997). ―[U]ndue hardship inquiry focuses on the hardships
imposed . . . in the context of the particular [employer's] operations.‖
U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002).
45
A detailed discussion of the undue hardship defense is beyond the
scope of this Paper, but additional analysis can be found in the EEOC‘s
Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act, No. 915.002,
October
17,
2002,
at
http://www.eeoc.gov/policy/docs/accommodation.html; 42 U.S.C. §
12111(10) (2000); 29 C.F.R.
§ 1630.2(p) (2007).
46
Reasonable Accommodation, supra note 44.
47
29 C.F.R. § 1630.9 (2007); Reasonable Accommodation, supra note
44, at ―General Principles.‖ In Brown v. Lucky Stores, the court stated
that the ―general rule‖ is that an employee must make an initial request
for accommodation. 246 F.3d 1182 (9th Cir. 2001).
48
Reasonable Accommodation, supra note 44, at Question 1.
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a reasonable accommodation.49 If the notice is unclear or
ambiguous, then often the interactive process is triggered for
the employer and additional clarification can (and should) be
requested from the employee.50
Once an accommodation has been requested, the
employer should initiate the ―interactive process‖ with the
employee, which should identify the precise limitations
resulting from the disability and potential reasonable
accommodations that could overcome those limitations.51
The ADA states: ―To determine the appropriate reasonable
accommodation it may be necessary for the covered entity to
initiate an informal, interactive process with the qualified
individual with a disability in need of the accommodation.‖52
One court explained that the interactive process is ―a
meaningful dialogue with the employee to find the best
means of accommodating that disability.‖53
D.
Employee Discipline and Misconduct
A primary function for any supervisor or manager is to
manage employee performance, which not only can help
further an employer‘s business objectives but also help avoid
claims of discrimination.54 Although, an employee‘s disability
49
Fram, supra note 23, at III-15; see Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996) (The Seventh Circuit
highlighted the issue of employer notice: ―[b]efore an employer may be
liable for failing to provide an employee with reasonable accommodation,
the employer must be aware of the employee‘s disability.‖).
50
See EEOC v. Sears, 417 F.3d 789 (7th Cir. 2005).
51
29 C.F.R. § 1630.2(o)(3) (2007).
52
29 C.F.R. § 1630(o) (2007) (emphasis added).
53
Enica v. Principi, 544 F.3d 328 (1st Cir. 2008); Fram, supra note 23, at
III-23. An example of the ―interactive process‖ requirements includes:
―(1) direct communication between the employer and the employee to
explore in good faith the possible accommodations; (2) consideration of
the employee‘s request; and, (3) offering an accommodation that is
reasonable and effective.” Zivkovic v. Southern California Edison Co.,
302 F.3d 1080 (9th Cir. 2002).
54
Applying Standards, supra note 26.
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typically has no bearing on performance or conduct,
sometimes an employee‘s disability may contribute to
performance or conduct problems. When this is the case, a
simple reasonable accommodation often may be all that is
needed to eliminate the problem.55
Most courts agree that reasonable accommodation
does not include rescinding discipline for an employee
violating a workplace rule and an employer may uniformly
impose discipline, even if the employee later reveals that the
misconduct was a result of a disability.56 Generally, courts
have held that an employer may hold all employees (those
with and without disabilities) to the same performance and
conduct standards and that an employer does not have to
allow an employee with a disability to engage in misconduct,
even if the misconduct is caused by the disability.57
For example, in Raytheon Co. v. Hernandez, the
Supreme Court noted that it ―rejected‖ the argument that
because the employee‘s workplace misconduct is related to
the disability that the employer‘s refusal to hire him on
account of that misconduct violated the ADA.58 Additionally,
in Bodenstab v. County of Cook, the court held that an
employer could terminate an employee for his alleged
threats to kill a co-worker because the employer ―did not
have an obligation to accommodate‖ the threats, ―even if
they were somehow related to a disability.‖59 Yet, the Ninth
Circuit‘s decision in Gambini is the principal case at odds
with these decisions in suggesting that an employer may not
55
Id.
Fram, supra note 23, at III-67/V-19.
57
56 Fed. Reg. 35,733 (1990); EEOC Compliance Manual §915.002 at
11, 12 fts. 11 and 12 (3/14/95) – available online at www.eeoc.gov. See
e.g., Hill v. Kansas City Area Transportation Authority, 181 F.3d 891 (8th
Cir. 1999); Davila v. Qwest Corp., 2004 U.S. App. LEXIS 19029 (10th Cir.
2004) (unpublished).
58
540 U.S. 44 (2003).
59
559 F.3d 651 (7th Cir. 2009).
56
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be able to terminate an employee who broke conduct rules
because of a disability.60
The EEOC has issued guidance on reasonable
accommodations and undue
hardship under the ADA, which states that employers can
hold all employees, even those with disabilities, to the same
work-related conduct and performance standards.61
Following a question and answer format, the EEOC
guidance explains:
(i) Must an employer provide a reasonable
accommodation for an employee with a
disability who violated a conduct rule . . .?
1. An
employer
must
make
reasonable accommodation to
enable an otherwise qualified
employee with a disability to meet
such a conduct standard in the
future, barring undue hardship,
except where the punishment for
the violation is termination. Since
reasonable
accommodation
is
always prospective, an employer is
not required to excuse past
misconduct even if it is the result of
the individual's disability.62
Most courts have held that an employer does not
need to tolerate misconduct by an employee in the
workplace, even if that misconduct is caused by the
60
Gambini, 480 F.3d at 950; Fram, supra note 23, at III-68.
See 56 Fed. Reg. 35, 733 (1990); Reasonable Accommodation, supra
note 44.
62
Reasonable Accommodation, supra note 44. See Siefken v. Arlington
Heights, 65 F.3d 664 (7th Cir. 1995). Therefore, it may be in the
employee's interest to request a reasonable accommodation before
performance suffers or conduct problems occur. Id. at 666.
61
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employee‘s disability.63 Additionally, if the employer finds
out after the fact that the employee has a disability and the
disability may have caused the behavior, courts have found
that employers do not need to waive or rescind discipline.64
An employee cannot avoid discipline for misconduct by
requesting a reasonable accommodation during the
discipline
meeting,
although
once
a
reasonable
accommodation request is made then the employer must
engage in an interactive process with the employee.
E.
Direct Threat Exception
The ADA contains an exception that allows employers
to transfer or even terminate employees whose disabilities
pose a direct threat to their own health and/or safety or to
the health and safety of their co-workers.65 The sole
reference to ―direct threat‖ in the ADA is found in §103(b) –
―Defenses‖ – which permits an employer to require, as a
qualification for employment, that an individual not pose a
direct threat to the health or safety of others.66
63
Fram, supra note 23, at V-1, V-15. Interestingly, courts have also
found that an employer does not need to rehire a legitimately terminated
employee who requests a reasonable accommodation after the
termination in a Ninth Circuit case, Sena v. Weyerhaeuser, which stated
that the ADA does not immunize employees from terminations based on
workplace misconduct. 1999 U.S. App. LEXIS 499 (9th Cir. 1999).
64
Fram, supra note 23, at III-67. See also Hill v. Kansas City Area
Transp. Auth., 181 F.3d 891 (8th Cir. 1999).
65
29 C.F.R. § 1630.2(r) (2007); Michael Pepperman & Thomas Hearn,
Terminate a Disabled Employee Under the “Direct Threat” Exception to
the
ADA,
MID-ATLANTIC
BUILDER,
May/June
2006,
http://www.homebuilders.org/file_depot/0-10000000/010000/48/folder/53710/p37-45.pdf.
66
FRIEDMAN, supra note 5, at 923. 42. U.S.C. § 12113(c) (2000) (the
other reference to ―direct threat‖ in the ADA is in § 101(3), where it is
defined). See 42 U.S.C. § 12111(3) (2000) (direct threat means a
significant risk to the health or safety of others that cannot be eliminated
by reasonable accommodation).
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DISABILITY GALAXY LAW REVIEW
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This direct threat determination must be based upon a
reasonable medical judgment that relies on the most current
medical knowledge and/or the best objective evidence.67 In
addition, the determination must be based on an expressly
individualized assessment of the employees‘ (or applicants‘)
present ability to safely perform the essential functions of the
job.68 In determining whether an individual would pose a
direct threat, the factors to be considered include: (1) The
duration of the risk; (2) The nature and severity of the
potential harm; (3) The likelihood that the potential harm will
occur; and (4) The imminence of the potential harm.69
The Supreme Court, in Chevron USA, Inc. v.
Echazabal, upheld the EEOC regulation permitting the
defense that a worker's disability on the job would pose a
direct threat to his health even though the actual text of the
ADA defines direct threat as only a significant risk to the
health and safety of others.70 The Court noted that the
EEOC had leeway in creating this regulation because they
had to balance the competing objectives in OSHA
(protecting worker's safety) and the ADA.71 On the other
hand, there are a few cases that support the Gambini
decision, suggesting that an employer may not be able to
terminate an employee who violated workplace conduct
rules because of a disability as the conduct does not rise to
the level of a direct threat exception.72
67
29 C.F.R. § 1630.2(r) (2007); Pepperman, supra note 71.
Pepperman, supra note 71.
69
Id.
70
536 U.S. 73 (2002). See also Kapche v. City of San Antonio II, No.
00-50588 (5th Cir. Aug. 30, 2002) (where the court held that due to
medical advancements and consistent Supreme Court decisions
mandating an individualized inquiry under various sections of the Act, an
individualized assessment must be made on the applicant's ability to
safely perform the essential functions of his job).
71
Chevron USA, Inc. v. Echazabal, 536 U.S. 73 (2002).
72
486 F.3d 1087 (9th Cir. 2007).
68
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IV.
39
Gambini v. Total Renal Care73
A.
Lower Court Decision
In November 2000, Stephanie Gambini began
working as a contracts clerk at DaVita, a company that
provides dialysis to renal patients.74 It was undisputed that
Ms. Gambini had a history of health problems. In April 2001
after an emotional breakdown at work, Ms. Gambini learned
that her symptoms of depression and anxiety were
consistent with bipolar disorder.75 Ms. Gambini told her
current supervisor in April 2001 as well as her subsequent
supervisor in May 2001 that she was seeking medical
treatment for bipolar disorder.76 Additionally, Ms. Gambini
had also told her co-workers that she was experiencing
mood swings, which she was addressing with medication.77
In April 2002, Ms. Gambini began to have a hard time
concentrating and assigning priorities between her tasks and
found herself increasingly irritable as her bipolar symptoms
grew more severe.78 During this time, Ms. Gambini‘s current
and former supervisors discussed Ms. Gambini‘s attitude
and what they perceived as her poor job performance, and
decided to deliver a written performance improvement plan
to Ms. Gambini at a later meeting.79 The supervisors then
requested Ms. Gambini attend a meeting without telling her
of the specific purpose.80
From the start, Ms. Gambini was already agitated for
not knowing the purpose of the meeting.81 She was then
73
Id. at 1091.
Id.
75
Id.
76
Id.
77
Id.
78
Id.
79
486 F.3d at 1091.
80
Id.
81
Id.
74
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presented an improvement plan, which started with the first
sentence: ―[Ms. Gambini‘s] attitude and general disposition
are no longer acceptable in the SPA department.‖82 Ms.
Gambini began to cry.83 Once she finished reading the
performance plan, Ms. Gambini threw it across the desk
accompanied by several profanities expressing her opinion
that the plan was both unfair and unwarranted.84 After
hurling choice profanities, allegedly warning they ―will regret
this,‖ and slamming the door on her way out, Ms. Gambini
proceeded back to her cubicle where she then began kicking
and throwing things.85 At her cubicle and before leaving, Ms.
Gambini attempted to contact the psychiatric nurse
practitioner she was treating with to relay how upset the
meeting made her feel and about her suicidal thoughts.86
DaVita provided Ms. Gambini with FMLA paperwork
and later provisionally approved Ms. Gambini‘s request for
FMLA leave.87 During the human resource generalist‘s
investigation into Ms. Gambini‘s outburst, several employees
emailed stating concerns about her outburst, including one
employee specifically requesting that Ms. Gambini be
prevented from returning to work.88 Six days after her
outburst, Ms. Gambini was called by her current supervisor
and the human resource generalist and informed that her
employment was being terminated.89 Three days later, Ms.
Gambini asked DaVita to reconsider its decision to terminate
82
Id.
Id.
84
Id.
85
Id. at 1092.
86
Id. Upon reporting to work the next day, Ms. Gambini received a
return call from the practitioner who directed her to go immediately to the
hospital given her suicidal thoughts. Id. at 1092.
87
Id.
88
Id.
89
Id.
83
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41
her employment and stated that her behavior during the
meeting was a consequence of her bipolar disorder.90
When DaVita refused to reconsider, Ms. Gambini filed
an action in December 2004 claiming DaVita discriminated
against her in violation of a provision under the Washington
Law Against Discrimination, which was analogous to the
ADA, and the Family Medical Leave Act.91 At trial, Ms.
Gambini objected to the district court‘s substantive jury
instructions on each of her legal claims.92 After the jury
returned a verdict in favor of DaVita on all claims and the
trial court denied Ms. Gambini‘s post-trial alternative motion,
Ms. Gambini filed an appeal, stating that the trial court erred
when it failed to give the jury the following instruction:
―Conduct resulting from a disability is part of the disability
and not a separate basis for termination.‖93
B.
Appellate Court Decision
The Ninth Circuit Court of Appeals overturned the
March 1, 2007 verdict, ruling the judge should have given
the requested jury instruction: "conduct resulting from the
disability is part of the disability and not a separate basis for
termination."94 In other words, because Ms. Gambini's
bipolar disorder caused her disruptive behavior, the behavior
90
Id.
486 F.3d at 1092. The rule at issue here, that conduct resulting from a
disability is not a legitimate basis for termination, is the same under both
Ninth Circuit ADA law and the Washington Law Against Discrimination.
See Riehl v. Foodmaker, Inc., 152 Wash. 2d 138 (2004). ―[T]he Ninth
Circuit‘s application of this principle in this context of the Washington law
is a proper indicator of the Ninth Circuit‘s view of how the same principle
would apply under the ADA.‖ Menchaca v. Maricopa Cmty. College
Dist., 595 F. Supp.2d 1063 n.7 (D. Ariz. 2009).
92
Gambini, 486 F.3d at 1092.
93
Id.
94
Id.
91
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was protected under state and federal laws.95 The court
concluded that Washington law was consistent with the ADA
on this issue and that, under both federal and Washington
law, the trial court's failure to permit the jury to link conduct
resulting from Ms. Gambini's disability (i.e., her workplace
outburst) with the disability itself (her bipolar condition)
required that the jury verdict be reversed.96
In its decision, the court relied on its 2001 ruling in
Humphreys v. Memorial Hospitals Association.97
In
Humphreys, the court found that an employee's obsessivecompulsive disorder made it impossible for her to comply
with attendance rules, and the employer violated the ADA by
terminating her for absences and tardiness caused by her
mental illness.98 Accordingly in Gambini, the court said the
ADA and the Washington disability law required the trial
court to instruct the jury to consider conduct arising from the
disability as part of the disability and not as a separate basis
for termination.99
The Ninth Circuit Court of Appeals also emphasized
that under Washington law a plaintiff need not prove that the
impermissible basis for the adverse employment action, the
95
Mary Swanton, Washington Law Bars Dismissal of Disruptive
Employee,
June
1,
2007,
INSIDE
COUNSEL,
http://www.insidecounsel.com/Issues/2007/June%202007/Pages/Washin
gton-Law-Bars-Dismissal-of-Disruptive-Employee.aspx.
96
Misconduct May Be Part of a Disability, Ninth Circuit Says, PERKINS
COIE
–
NEWS/PUBLICATIONS,
March
22,
2007,
http://www.perkinscoie.com/news/pubs_detail.aspx?publication=1300
(the court directed the claim be remanded for a new trial).
97
239 F.3d 1128, 1139–40 (9th Cir. 2001).
98
Id.
99
Gambini, 486 F.3d at 1093. Specifically, the court noted: In so doing
Riehl drew on our own holding in Humphrey v. Memorial Hospitals Ass'n,
which in the context of the ADA similarly articulated that ―conduct
resulting from a disability is considered part of the disability, rather than a
separate basis for termination.‖ Id. See also Wash. Rev. Code Ann. §
49.60.010 (1995).
2011]
DISABILITY GALAXY LAW REVIEW
43
disability, was itself ―the determining factor.‖100 In Riehl, an
employer terminated and refused to rehire an employee who
began to experience depression and post-traumatic stress
disorder (―PTSD‖) after approximately five years of
service.101 In light of his favorable performance reviews and
promotions, the supervisor's comments ―suggest that [the
employer's] decision to fire and/or not rehire Mr. Riehl was
based on Mr. Riehl's personality difference, which may have
been caused by his disability.‖102
Thus, a decision
motivated even in part by the disability is tainted and entitles
a jury to find that an employer violated antidiscrimination
laws.103
DaVita, the employer, acknowledged that Ms.
Gambini was fired, in part, because her ―violent outbursts‖
frightened her co-workers.104 The court noted that these
outbursts were ―arguably symptomatic of her bipolar
disorder‖ and held that the jury could ―infer reasonably‖ that
her outburst ―was a consequence of her bipolar disorder,
which the law protects as part and parcel of her disability.‖105
The court explained that ―if the law fails to protect
manifestations of her disability, there is no real protection in
the law because it would protect the disabled in name
only.‖106 Therefore, Ms. Gambini was entitled to have the
100
Riehl v. Foodmaker, Inc., 94 P.3d 930, 936 (2004) (en banc).
Id. at 938.
102
Id. at 937.
103
Gambini, 486 F.3d at 1094 (a jury could reasonably find that the
mental disability was a ―substantial factor‖ in the adverse employment
actions).
104
Id.
105
Id. Additionally, the court found that Ms. Gambini was not entitled to
submission of issue of ―direct threat‖ defense, which was borrowed from
ADA, because Washington law did not contain direct-threat provision and
DaVita had not raised this defense. 42 U.S.C. § 12111(3) (2000); Wash.
Rev. Code Ann.
§ 49.60.010 (West 1995).
106
Gambini, 486 F.3d at 1095. In a footnote, the court acknowledged it
would have been correct to instruct the jury that an ―employer cannot fire
101
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jury instructed that if it found that her conduct at issue was
caused by or was part of her disability, it could then find that
one of the ―substantial reasons‖ she was fired was her
bipolar condition.107
C.
Additional Support for Gambini
Prior to the Gambini decision in 2007, other courts in
the Ninth Circuit had adopted similar reasoning for analyzing
the resulting conduct from an employee‘s disability. For
example, in Humphrey v. Memorial Hospitals Association,108
and Dark v. Curry County,109 the courts stated that with few
exceptions (like alcohol and drug violations), conduct
resulting from a disability should be considered to be part of
the disability, and not a separate basis for termination.
Additionally, recent guidance from the EEOC cautions
that if the misconduct resulted from a disability, the employer
must be able to demonstrate that the conduct rule is jobrelated and consistent with business necessity.110
An
example being that an employer is prohibited from
terminating an employee who attempted suicide due to
depression.111 However, an employer can discipline an
employee who violates safety rules at a construction site,
even if the violation is due to a disability.112
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.‖ Id.
107
Id. at 1093 (stating ―where an employee demonstrates a causal link
between the disability-produced conduct and the termination, a jury must
be instructed that it may find that the employee was terminated on the
impermissible basis of her disability‖).
108
239 F. 3d 1128 (9th Cir. 2001).
109
2006 U.S. App. LEXIS 16838 (9th Cir. 2006).
110
Guidance, supra note 1.
111
Id. at 3.
112
Id.
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45
D.
Post-Gambini Decisions
Although the majority of circuits do not follow
Gambini‘s reasoning, there is at least one subsequent case
that supports the Ninth Circuit‘s decision. In 2009, the court
in Menchaca v. Maricopa Community College District, a
Ninth Circuit case, followed reasoning similar to Gambini.113
In Menchaca, a former college employee brought an action
under the ADA alleging that her termination for a veiled
threat was motivated by disability discrimination.114 The
court held that the employee's statement to her supervisor
that she would ―kick your ass‖ was not sufficiently egregious
as a matter of law to bar the employee's claim that her
subsequent termination was motivated by disability
discrimination, in violation of the ADA.115 The employee‘s
outburst, even if the threat qualified as criminal conduct
under state law, was found by the court to be arguably
symptomatic of the employee's mental impairments of
traumatic brain injury and post-traumatic stress disorder.116
However, in Erickson v. Fisher Communications,
another 2009 post-Gambini decision, a Washington court
rejected the Ninth Circuit Court of Appeal‘s analysis.117
Although an unpublished Division 1 Court of Appeals case,
the Washington court found that the employee‘s disability
was not a substantial factor in any employment decisions.118
In declining to apply the reasoning in Gambini or Riehl, the
court emphasized that the employer had no prior notice of
the employee‘s disability.119
Specifically, the court
113
Menchaca v. Maricopa Cmty. College Dist., 595 F. Supp.2d 1063 (D.
Ariz. 2009).
114
Id.
115
Id. at 1074.
116
Id.; 42 U.S.C. § 12112 (2000).
117
Erickson v. Fisher Communications, No. 62252-8-I, 2009 WL
1194526, at *2 (Wash. App. Div. 1 May 4, 2009).
118
Erickson, 2009 WL 1194526, at *4.
119
Id.
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highlighted that the employer had no knowledge that the
employee had depression and the employee did not disclose
that information before, during, or after the meeting when the
Performance Improvement Plan was proposed or prior to the
employee submitting his resignation letter.120
V.
Discussion: Notice and Reasonable
Accommodation by Employer is Key
Following Gambini, it appears that employers in the
Ninth Circuit are caught between potentially discriminating
against someone with a disability by proceeding with
discipline and allowing misconduct that could put other
employees and customers at risk. Despite this appearance,
Gambini appears to have left a middle ground between
these two options when faced with employee misconduct.
Gambini and other cases have emphasized the importance
of prior notice or knowledge by the employer of an
employee‘s disability. Once put on notice, the employer
must engage in the interactive process with the employee,
which then may produce reasonable accommodations that
could ultimately reduce future misconduct. If the employer
has no notice of a disability or need for reasonable
accommodation, then an employer should be able to
proceed with consistent discipline for egregious or criminal
conduct as discussed in turn.
A.
Employer Must Have Prior Notice of Disability
The Gambini court repeatedly emphasized that the
employer was put on notice of Ms. Gambini‘s disability (i.e.,
her bipolar disorder): ―Ms. Gambini informed her supervisor .
. . she was seeking medical treatment‖; ―Ms. Gambini also
told [her new supervisor] that she was suffering from bipolar
disorder and requested several accommodations‖; and ―Ms.
Gambini privately divulged to [supervisor] that she was
120
Id. at *5.
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47
seeing a therapist and struggling with some medication
issues.‖121 The employer‘s notice of a disability in Gambini
was important because Ms. Gambini‘s later misconduct
appeared to be directly attributable to the bipolar disorder.
Therefore, her outburst, profanities, and misconduct in the
cubicle were traceable to her bipolar disorder and were
behaviors that the employer would have reason to believe
were caused by or resulted from her disability.
This concept of employer notice continues in other
court opinions as well.
In Erickson v. Fisher
Communications, the court stated that ―neither Gambini nor
Riehl stand for the proposition that an employer may be
liable for employment decisions when the employer has no
knowledge of a disability.‖122 The court continued, ―Instead,
both [cases] hold that an employee‘s conduct resulting from
a disability, not merely the disability may be protected . . .
when the employer knows or should have known of a
disability.‖123 Additionally, in a case that favorably cited
Gambini, the court in Menchaca v. Maricopa Community
College District found the employee‘s conduct was part of
her disability, and noted that the employer had been aware
of
and
had
previously
provided
reasonable
accommodation.124
If an employer has no notice of an employee‘s
disability that may have caused the misconduct, then it
appears to have no obligation to rescind discipline or even
termination. As discussed above, the EEOC has taken the
position that employers can hold all employees, even those
121
Gambini, 486 F.3d at 1091.
Erickson, 2009 WL 1194526, at *5.
123
Id.
124
Menchaca v. Maricopa Cmty. College Dist., 595 F. Supp.2d 1063 (D.
Ariz. 2009). Although not specifically highlighting the notice issue, the
Menchaca court opined that the facts of the plaintiff‘s case were similar
to those presented in Gambini.
Gregory Valenza, Mis-Firing for
Misconduct, LOS ANGELES DAILY JOURNAL, June 10, 2010, at 5.
122
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with disabilities, to the same work-related conduct and
performance standards.125 Moreover, since the employer
must be put on notice of an employee‘s disability or need for
accommodation, an employer would not want to speculate
whether an employee‘s misconduct was a result of a
disability or then the employer potentially violates the ADA
for regarding the employee as disabled.126
Employer’s Obligation to Provide Reasonable
Accommodation
Once an employer is put on notice of an employee‘s
disability and after engaging in the interactive process, the
employer then must determine what an appropriate
reasonable accommodation would be for potential workplace
misconduct. The definition of reasonable accommodation in
the ADA regulations includes the concept that an employer
may have to modify or adjust workplace policies:
―appropriate adjustment or modifications of examinations,
training materials, or policies.‖127
The statute and
regulations clearly state that an employer must ―restructure
an employee‘s job as a reasonable accommodation, which
often means modifying the job to reallocate or redistribute
nonessential job functions, or altering when and/or how a
function is performed.128 However, an employer would not
need to reallocate essential job functions as a reasonable
accommodation.129
It is unclear whether, if having no prior notice of a
disability, the employer would be limited to withholding
B.
125
See 56 Fed. Reg. 35, 733 (1990).
42 U.S.C. § 12102(2)(B),(C) (2000).
127
29 C.F.R. § 1630.2(o)(2)(ii) (2007).
128
42 U.S.C. § 12111(9)(B) (2000); 29 C.F.R. § 1630.2(o)(2)(ii) (2007).
129
29 C.F.R. § 1630.2(n) (2007). In Hennagir v. Utah Department of
Corrections, 587 F.3d 1255 (10th Cir. 2009), the court noted that ―an
employer is not required to accommodate a disabled worker by
modifying or eliminating an essential job function of the job.‖
126
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DISABILITY GALAXY LAW REVIEW
49
discipline and then requesting medical documentation
supporting the need for reasonable accommodation by
excusing the conduct or whether the employer could issue
the discipline because it had no prior notice and then only
provide reasonable accommodation for future conduct. In
seeking to provide reasonable accommodation, the
employer should seek clarification and information from the
employee‘s health care provider substantiating that the
employee‘s disability in fact caused the misconduct. This
request for additional clarification would be consistent with
the regulations, which permits a medical examination as long
as it is shown to be job-related and consistent with business
necessity.130
There also appears to be a threshold of egregious
misconduct that an employer does not need to permit,
regardless of the employee‘s disability. As highlighted in
Menchaca, there is an exception to protection under the
ADA for employee conduct that is ―egregious and
criminal.‖131 The Menchaca court also defined egregious as
―extremely or remarkably bad‖ and ―extraordinary
extreme.‖132 The employee‘s statement in Menchaca that
she would ―kick [her supervisor‘s] ass‖ was found not to be
an ―extraordinary‖ or ―extreme‖ act, but more akin to a
profanity-laced outburst containing a veiled threat (in
130
42 U.S.C. § 1211(d)(4)(A) (2000).
Menchaca v. Maricopa Cmty. College Dist., 595 F. Supp.2d 1063,
1073 (D. Ariz. 2009) (this phrase is from a prior Ninth Circuit decision
involving alcoholism). See Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.
1996) (where a civilian employee working at a military combat center
was terminated after a ―drunken rampage‖ in which he attempted to fire
an assault rifle at patrons in a bar). The Ninth Circuit concluded:
―Attempting to fire a weapon at individuals is the kind of egregious and
criminal conduct which employees are responsible for regardless of any
disability.‖ Id.
132
Menchaca, 595 F. Supp.2d at 1074, referencing Black‟s Law
Dictionary 534 (7th ed. 1999) and Webster‟s Third New International
Dictionary 727 (2002) respectively.
131
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contrast to an attempt to fire an assault rifle at individuals in
a bar).133 Additionally, the court noted that the outburst and
conduct in Gambini could not be ―egregious and criminal‖ for
if such conduct were ―egregious and criminal‖ it could not be
protected.134
These recent cases following Gambini emphasize the
various levels of employee misconduct and can be used to
guide and employer‘s evaluation of how similar their own fact
pattern is as compared to prior case law. At one end of the
spectrum, veiled threats and profanity-laden outbursts
accompanying a cubicle tantrum are not sufficiently
egregious to prohibit employee protection under the ADA
when the employer had prior notice of the employee‘s
disability.
However, at the other end, an employee
attempting to fire an assault rifle at individuals in a bar is
sufficiently egregious so as to permit the employer to hold
the employee responsible for the conduct regardless of a
disability. Yet, to some degree, these examples seem
obvious for an employer in determining how to proceed with
discipline, as well as affirming that an employer would not be
required to provide a reasonable accommodation if the
employee‘s conduct constituted a direct threat. These cases
are also consistent with EEOC guidance that states: ―An
employer never has to tolerate or excuse violence, threats of
violence, stealing or destruction of property. An employer
may discipline an employee with a disability for engaging in
such misconduct if it would impose the same discipline on an
employee without a disability.‖135
But it remains unclear how an employer should
respond to more intermediate scenarios, such as offensive
yet not actionable harassing comments, rudeness to coworkers and customers, or mild insubordination to
management. If an employer is put on notice of a disability,
133
Id.
Id.
135
Applying Standards, supra note 26.
134
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DISABILITY GALAXY LAW REVIEW
51
engages in the interactive process, and seeks to provide a
reasonable accommodation to an employee, it then must
determine to what extent does it modify or adjust Company
policies or practices regarding workplace misconduct. This
course of action must be carefully navigated by an employer
following Gambini.
C.
Guidance for Employers and Employees
Employers
The Ninth Circuit‘s unmatched interpretation of the
ADA as consistent with Washington law that is proposed in
the Gambini case sets a potential trap for employers as they
deal with future employee workplace misconduct.136 One
reliable source for information and guidance is the EEOC‘s
―The Americans With Disabilities Act: Applying Performance
And Conduct Standards To Employees With Disabilities.‖137
In response to the question of what an employer should do if
an employee mentions a disability and/or need for an
accommodation for the first time in response to counseling
or discipline for unacceptable conduct, the EEOC
responded:
If an employee states that her disability is the cause
of the conduct problem or requests accommodation,
the employer may still discipline the employee for the
misconduct. If the appropriate disciplinary action is
termination, the ADA would not require further
136
Note: The Ninth Circuit is the largest of the thirteen courts of appeals
and covers the following states: Washington, California, Oregon, Idaho,
Montana, Nevada, Arizona, Alaska, and Hawaii (as well as the territories
of Guam and the Mariana Islands). For a discussion about proposed
splitting of the Ninth Circuit, see Federalism and Separation of Powers, A
Court United: A Statement of a Number of Ninth Circuit Judges, 7
ENGAGE,
March
4,
2006,
http://online.wsj.com/public/resources/documents/wsj_court_united.pdf.
137
Applying Standards, supra note 26.
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discussion about the employee‘s disability or request
for reasonable accommodation.138
Given the EEOC‘s recommendations and other supportive
case law, an employer may proceed with discipline and
possible termination if it had no prior notice of an employee‘s
disability.
Additionally, in response to the Gambini decision, the
Washington State Human Rights Commission (WHRC) has
issued guidance for employers.139 For example, the WHRC
recommends, in relevant part, for an employer to consider:
(1) An employee must be able to
perform the essential functions of the
position
with
or
without
accommodation.
(2) Have clear, written rules of conduct
and a step disciplinary process.
Make sure that these rules are jobrelated and consistent with business
necessity.
(3) Make sure to apply these conduct
rules consistently to all employees.
(4) Have
written
detailed
job
descriptions that incorporate good
conduct as part of the job
requirements.
(5) When
an
employee
requests
reasonable accommodation, enter
into the interactive process and
agree
on
a
reasonable
accommodation that will to assist the
employee to abide by conduct rules.
138
139
Id.
Guidance, supra note 1, at 4.
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DISABILITY GALAXY LAW REVIEW
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(6) If a conduct rule is violated and the
employee argues that a disability
caused the conduct, consider halting
the disciplinary process to determine
if a reasonable accommodation is
necessary.
If a reasonable
accommodation is in place, before
you impose discipline determine if
there is more you can do to
reasonably
accommodate
the
employee so violations do not occur.
(7) Employers have the ability to argue
business necessity, undue hardship,
and direct threat defenses.
Employers must consistently apply its conduct and
discipline rules, regardless of whether an employee has a
disability or not. The EEOC has stated an employer may
discipline an individual when the employee‘s disability
caused the violation of a conduct rule ―[i]f . . . other
employees are held to the same standard.‖140 Employers
should be careful that they apply all conduct rules
consistently and should not single out an employee with a
disability for harsher treatment.141 Therefore, an employer
should look to prior employee situations to see how
discipline was administered for guidance in how to deal with
the same conduct by an employee with a disability.
Although an employer need not withhold disciplinary
action if it had no prior notice of the disability or need for
accommodation until after misconduct has occurred, if the
discipline is something less than termination then the
employer needs to try and provide an accommodation after
engaging in the interactive process with the employee. The
140
141
Applying Standards, supra note 26.
Id.
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purpose of this interaction is to help the employer determine
if there is a reasonable accommodation that could help the
employee avoid future misconduct caused by the
employee‘s disability and involves a two-step process.
First, since notice to the employer is key, it is
important to understand the nuances of such notice. If an
employee with a known disability is having performance or
conduct problems and there is an obvious link or a reported
link to the employee‘s disability, then the employer should
ask the employee about whether the employer can assist in
some way.142 An employer may prefer to ask if some other
actions can be taken to assist the employee to improve his
or her performance without specifically mentioning
―reasonable accommodation‖ or the employee‘s disability,
such as asking, ―How can we assist you?‖143 Yet, if the link
to performance is not related to the disability, such as an
employee with back problems having poor customer service,
then the employer‘s obligation is not triggered. Of course,
without any prompting, the employee may request an
accommodation during a discussion about performance or
conduct, which would also trigger the interactive process.
An employer should remember that there are no ―magic
words‖ for requesting an accommodation because an
employer‘s knowledge of an employee‘s disability and a
potential affect on the employee‘s ability to perform his or
her job would be sufficient notice.144
Once the interactive process has been started, the
employer has asked how it can assist, and the employee
confirms the need for assistance, then the employer should
ask for documentation of work restrictions or functional
142
See 29 C.F.R. § 1630.9 (2007); see also Reasonable
Accommodation, supra note 44, at question 41.
143
Applying Standards, supra note 26.
144
Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010) (―[E]mployers
should not require the employee to use ‗magic‘ language, or even use
the term ‗reasonable accommodation‘ in the request.‖).
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limitations that would affect the employee‘s ability to work.
The employer should request appropriate medical
documentation from the employee‘s health care provider,
which would provide information about whether the condition
meets the ADA‘s definition of ―disability,‖ whether and to
what extent the disability is affecting the employee‘s
conduct, and what possible accommodations may address
the workplace problem.145 But if the need for reasonable
accommodation is obvious, then the employer can request
documentation regarding the employee‘s disability and its
affect on performance in the workplace.
Lastly, as suggested by the Washington State Human
Rights Commission, an employer should evaluate how
closely their fact situation matches the facts in Gambini.146
The cases after Gambini have compared and contrasted the
facts in an effort to apply the applicable rules set forth by the
Ninth Circuit. When evaluating a current situation, questions
an employer should consider include:
―Were you aware of the disability? Is the
employee seeking treatment for the
disability? Is your employee attempting to
adjust medication? Does the employee
have a disability that manifests itself
through poor behavior? How serious was
the behavior, i.e. was there verbal
behavior, physical behavior, or physical
contact? Does your discipline cite attitude
and demeanor as a reason for discipline?‖
The closer an employer‘s facts are to the facts in the
Gambini case, the more careful a Ninth Circuit employer
should be about issuing discipline or potentially termination.
Also, the EEOC has stated that certain conduct standards
exist in all workplaces and cover all types of jobs that would
145
146
Applying Standards, supra note 26.
Guidance, supra note 1.
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always meet the job-related standard in which an employer
could discipline an employee for violating a conduct rule,
including prohibitions on violence, threats of violence,
stealing, or destruction of property.147
Employees
Most courts have found that an employee must
request a reasonable accommodation, but there are no
―magic words‖ to such a request.148 The EEOC has stated,
―it is the responsibility of the individual with a disability to
inform the employer that an accommodation is needed.‖149
Therefore, if an employee has a disability that may affect his
or her conduct in the workplace, the employee should seek
to engage with the employer to consider possible reasonable
accommodations. Moreover, one court suggested that it
may be in the employee‘s best interest to request a
reasonable accommodation before performance suffers or
conduct problems occur.150 The EEOC supports this idea by
noting that the timing of an employee‘s request for
reasonable accommodation is important, and that
employees should make such a request before performance
problems arise, or at least before the problems become too
serious.151
The EEOC‘s guidance about performance and
conduct standards states that employees ―should not
assume that an employer knows that an accommodation is
needed to address a conduct issue merely because the
employer knows about the employee‘s disability. Nor does
147
Applying Standards, supra note 26.
Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010).
149
29 C.F.R. § 1630.9 (2007); Reasonable Accommodation, supra note
44, at ―General Principles.‖ In Brown v. Lucky Stores, 246 F.3d 1182
(9th Cir. 2001), the court stated that the ―general rule‖ is that an
employee must make an initial request‖ for accommodation.
150
See Siefken v. Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995).
151
Applying Standards, supra note 26.
148
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an employer‘s knowledge of an employee‘s disability require
the employer to ask if the misbehavior is disabilityrelated.‖152 Thus an employee‘s general statement about a
medical condition without a link to performance or the
workplace is usually insufficient to trigger the interactive
process. Notice of an employee‘s disability and that it is
potentially affecting an employee‘s work performance is a
trigger to an employer to begin the interactive process. Also,
an employee may need to provide some link or request
based on his or her medical condition and the need for a
modification in the workplace, but the employee need not
formally request an ―accommodation.‖ During discussions
about performance or conduct, ―[i]t is generally preferable
that the employee initiate any discussion on the role of the
disability.‖153
Finally, for an employee seeking to bring a disability
discrimination claim, Washington courts have adopted the
McDonnell-Douglas three-part burden allocation framework,
where the employee has the initial burden.154 Once the
employee establishes a prima facie case, the burden shifts
to the employer to present evidence of a legitimate,
nondiscriminatory reason for its employment action.155 The
burden then shifts back to the employee to produce
evidence that the asserted reason was merely a pretext.156
As discussed in Erickson, to survive summary judgment the
employee ―need only show that a reasonable judge or jury
could find that his disability was a substantial motivating
factor for [the employer‘s] adverse actions.‖157
152
Id.
Applying Standards, supra note 26.
154
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
155
Id. at 803.
156
Id. at 805.
157
Erickson v. Fisher Communications, No. 62252-8-I, 2009 WL
1194526, at *3 (Wash. App. Div. 1 May 4, 2009); Hill v. BCTI Income
Fund-I, 144 Wash.2d 172, 185–87 (2001).
153
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VI.
Conclusion
Although decided in 2007, Gambini remains an
ominous decision in the Ninth Circuit for both employers and
employees navigating disability and workplace misconduct
issues. In finding that the jury in Gambini was entitled to
infer that her profanity-laden outbursts accompanying a
cubicle tantrum was a consequence of her bipolar disorder,
which is protected as part and parcel of her disability, the
court also emphasized the employer‘s prior notice of such a
disability and potential that the conduct was not overly
egregious. In subsequent split cases, the key elements of
notice and requiring the conduct to be egregious or criminal
tend to be major factors in determining whether the
employee‘s misconduct resulting from a disability is
protected.
Going forward, employers should evaluate how
closely their situation matches the fact pattern of Gambini.
Additionally, once an employer becomes aware of an
employee‘s disability and possible need for reasonable
accommodation to avoid misconduct in the workplace, then
the employer should immediately engage in the interactive
process. As part of the interactive process and in an effort to
provide reasonable accommodation, the employer should
also ask for documentation substantiating the employee‘s
disability and any limitations on the employee‘s ability to
work. While there is no set answer of how to resolve a
situation involving workplace misconduct, the employer must
continue to balance the safety and well-being of its
employees and customers versus a potential claim for
disability discrimination.