Anti-discrimination laws that prohibit disability discrimination – such as the Americans With Disabilities Act – are among the most difficult employment laws for employers to administer and for employment lawyers to litigate. The law prohibiting disability discrimination differs from most other anti-discrimination laws. The most obvious distinction is that treating employees consistently will defeat most discrimination claims based on race, sex and other protected criteria.

In the case of disability discrimination, however, the employer must do more than consistently apply policies. The requirement of “reasonable accommodation” means the employer may be required to alter policies applied uniformly to all employees. Additionally, the law has developed in such a way that an employer may be liable for discriminatory treatment when it takes negative action based on an employee’s violation of policy – even misconduct – if the violation occurred as a result of the disability.

Enforcing Discipline

Employers’ impetus to enforce workplace policies is strong when the employee’s violation involves behavior perceived to be a harbinger of violence or other workplace misconduct. For example, employers have a duty to provide a safe workplace. They also may be held responsible for injuries to customers, business invitees and the like. The employer naturally may wish to focus on the employee’s violation of the policy, rather than the alleged root cause – disability – as a basis for discipline or discharge.

However, some courts recently have rejected employers’ arguments that they need not tolerate policy violations and misconduct, even if it can be linked to a disability. As too often is the case, conflicting legal obligations have placed employers between the proverbial rock and a hard place.

Earlier in the history of the Americans with Disabilities Act, employers safely could enforce their policies if they did so consistently, whether or not an employee claimed a disability was the cause. For example, the Equal Employment Opportunity Commission opined in Enforcement Guidance Regarding Reasonable Accommodations, revised in 2002: “an employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that 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.”

Along these lines, when Donald Newland attempted to fire an assault rifle in a bar during a “drunken rampage,” he claimed he did so because of alcoholism, a protected disability. Rejecting Newland’s claim that his conduct arose from his disability, the court held “[h]is termination was not in retribution for his alcoholism but rather was in response to his attempt to fire an assault rifle inside a bar.” Newland v. Dalton, 81 F.3d 904, 906 (9th Cir. 1996).

Similarly, the 9th Circuit held that employees would not be heard to argue their drug use on Longview Fibre Company property was related to a drug addiction disability: “Longview terminated the employees on the basis of their drug-related misconduct. … Longview was entitled to act as it did in discharging them because their misconduct, rather than any alleged disability, was the reason for their discharge.” Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th Cir. 1995).

Narrowing Justification

The 9th Circuit considerably narrowed Collings and Newland in a later case, Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1140 (9th Cir. 2001). There, the employer discharged Humphrey because of erratic attendance consistent with the policy it applied to all employees. Humphrey claimed that her admittedly poor attendance and absenteeism were the result of a disability: obsessive-compulsive disorder. In holding that Humphrey was entitled to a trial, the court limited Newland and Collings to violations of policy related to drug and alcohol-related issues. Recognizing that Newland also permitted discharge in the case of “egregious” or “criminal” conduct regardless of disability, the court simply said that the exception was inapplicable in Humphrey’s case.

Consider, then, Stephanie Gambini’s performance in meeting with her manager at Total Renal Care. As told by the 9th Circuit, when Gambini “finished reading the performance plan, Gambini 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 [a manager]. There is a dispute about whether during her dramatic exit Gambini warned [other managers] that they ‘will regret this,’ but [a supervisor] did observe Gambini kicking and throwing things at her cubicle after the meeting.”

Perhaps predictably, the employer discharged Gambini for her “violent outburst.” If the EEOC’s enforcement position quoted above, Newland and Collings, accurately stated the law, Gambini never would have seen a jury. Not so fast.

Definition Difficulty

As the 9th Circuit put it, “conduct resulting from a disability is considered part of the disability, rather than a separate basis for termination. As a practical result of that rule, 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.” Gambini v. Total Renal Care, 486 F.3d 1087, 1093 (9th Cir. 2007) (emphasis added). The court went on to say that a jury must be “entitled to infer reasonably that her ‘violent outburst’ … was a consequence of her bipolar disorder, which the law protects as part and parcel of her disability.”

The 9th Circuit’s holding in Gambini, then, is not based on the employer’s failure to “accommodate” the plaintiff’s disability. Rather, the court held that discharging Gambini because of her bi-polar episode – her profanity and physical conduct – would constitute intentional discrimination, an adverse action taken because of her disability.

The lesson from Gambini is that employers may not automatically enforce a policy prohibiting profanity, insubordination or physical conduct, such as throwing a file or kicking a cubicle. If an employee can link a disability to such conduct, the employer cannot assert the conduct as a legitimate basis for discharge. The court has left the door open for “egregious” or “criminal” conduct. But it is unclear how the court will apply this standard given Gambini’s behavior.

Resisting Violence

Other courts have been less sympathetic to employees who engaged in misconduct, particularly when there is a threat of violence or other misconduct.

In the 9th Circuit, however, an employer taking action based on conduct arising from a disability will be required to argue that the employee posed a “direct threat” to himself or others. (The court in Gambini held that the district court properly refused a direct threat instruction, in part because the case was decided under Washington law, which does not offer such a defense.)

The “direct threat” defense, though, is difficult to prove. It requires “a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence, and upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job, reached after considering, among other things, the imminence of the risk and the severity of the harm portended.” Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1026 (9th Cir. 2003) (internal quotations omitted).

Employers who choose to allow conduct like Gambini’s because of the court’s decision or the difficulty of proving the direct threat defense may do so at their peril. California employers have a duty to provide a safe workplace under Labor Code Section 6400. This duty extends to protection from violent co-workers. Thus, in Franklin v. The Monadnock Co., 151 Cal. App. 4th 252 (2007), Franklin and other employees complained after a co-worker, Ventura, threatened them with violence. After Ventura later carried out his threat and stabbed Franklin, he complained to the police. The company later discharged Franklin. Reversing a demurrer dismissing his complaint, the Court of Appeal held Franklin could proceed on a claim for wrongful termination in violation of public policy because Franklin’s complaint about Ventura was protected activity under the Labor Code.

Of course, no court would have protected Ventura’s actual assault as “conduct related to a disability.” Even his threats probably were more serious than Gambini’s conduct. But what if Ventura had merely thrown files at a manager and kicked his cubicle before actually assaulting someone, and then he asserted that he had a disability causing him to act in a threatening way? If the employer discharged Ventura, the employer would risk a disability discrimination lawsuit. On the other hand, allowing Ventura to continue employment resulted in actual violence, as well as a lawsuit by one of his victims.

The 9th Circuit’s decision in Gambini places employers in a difficult legal position to say the least. It is unclear whether other courts will follow the panel’s lead, or whether it will be distinguished to its special facts. In the meantime, employers must do their utmost to protect employees from violence in the workplace. At the same time, employers must consider creative alternatives to discharge when an employee’s conduct may be attributable to a disability.