Our October 2012 Lunch and Learn seminar on Mental Health in the Workplace, has attracted a widespread audience, as well as a multitude of comments and debates on what employers can and cannot do when dealing with an employee who has a mental health disability.  The general opinion seems to be that if an employee with a mental health issues has problems in the workplace, the best thing to do is “pick on his/her work performance” and not on his/her “issue”.  However, ADA considers mental illness a disability, just like any other physical disability, which can affect a worker’s performance.  Disability specialist, Marc Brenman looks at a seminal Supreme Court case which favored the dismissed employee, and concluded: “Conduct resulting from the disability…is part of the disability and not a separate basis for termination.”

With the new ADAA , employers will be forced to place less emphasis on determining whether an employee is truly disabled and more emphasis on how it can accommodate the employee’s needs and concerns. The landscape of disability discrimination law has been drastically altered and employers will need to adapt or face additional time-consuming and expensive litigation.

Please contact Marc Brenman directly with any questions.

­­Guidance about the Decision in Gambini v. Total Renal Care:

 Emotional Illness in the Workplace

by Marc Brenman

Social Justice Consultancy



Copyright 2012

The Ninth Circuit Court of Appeals, in Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (2007), has found that an employer may not be able to terminate the employment of an employee for misconduct, if the misconduct is related to the employee’s disability.  The following information is to assist employers and employees in understanding this complicated and controversial decision.  This information does not substitute for the advice of an attorney.  If you have further questions, or have a particular workplace situation that is of concern, you are urged to contact an attorney.

Case Facts

Gambini was diagnosed with bipolar disorder.  She informed her employer of the disability and that she was seeking treatment.  She further informed her employer that she was struggling with medication issues, and told her co-workers that these issues may influence her moods.  As Gambini continued to have medical issues, her supervisors discussed her attitude and job performance.  They decided to issue her a written performance improvement plan.  They called her to a meeting without telling her the reason.  The first sentence of the performance improvement plan stated, “[Gambini’s] attitude and general disposition are no longer acceptable…”  Gambini began to cry, threw the plan across the desk, swore at her supervisor, and slammed the door.  Back at her cubicle, Gambini kicked and threw things.  The next day, Gambini checked into a hospital.  The employer approved her request for Family and Medical Leave, and began an investigation into her behavior at the meeting.  The employer decided to terminate Gambini due to her behavior at the meeting.  Gambini sent a letter asking her employer to reconsider the termination because her behavior was due to her bipolar disorder.  The employer refused, and Gambini sued under a theory of disability discrimination.

The trial court jury returned a verdict in favor of the employer.  Gambini appealed the decision, stating that the trial court erred when it failed to give the following instruction to the jury:  “Conduct resulting from a disability is part of the disability and not a separate basis for termination.”  The appeals court decided, “Where the 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.”  The court cited Riehl v. Foodmaker, Inc., 152 Wn.2d 138, (Wash. 2004) in which the Washington State Supreme Court stated, “Conduct resulting from the disability…is part of the disability and not a separate basis for termination.”  The court went on to say that this decision does not provide employees with absolute protection from adverse employment actions.  The employee must still be qualified to perform the essential functions of the job with or without accommodation, and the employer can raise undue burden and direct threat defenses.

Other Decisions

Most other 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 employee’s disability.  In Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), the U.S. Supreme Court determined that a company’s policy against rehiring persons who previously violated a work rule, even when the violation occurred due to a disability, was a legitimate, nondiscriminatory reason for refusing to rehire an individual. Other courts have found that employers do not need to waive or rescind discipline if the employer finds out after the fact that the employee has a disability and the disability may have caused the behavior.  In addition, courts have held that an employee cannot avoid discipline for misconduct by requesting a reasonable accommodation during the discipline meeting (although once the reasonable accommodation request is made, the employer must engage in an interactive process with the employee).  Also, courts have found that an employer does not need to rehire a legitimately terminated employee who requests a reasonable accommodation after the termination.  A Ninth Circuit case, Sena v. Weyerhaeuser, 1999 U.S. App. LEXIS 499 (9th Cir. 1999), stated that the ADA does not immunize employees from terminations based on workplace misconduct.

The EEOC has taken the position that employers can hold all employees, even those with disabilities, to the same work-related conduct and performance standards.  See 56 Fed. Reg. 35, 733 (1990).

On the other hand, there are cases that support the Gambini decision.  In Humphrey v. Memorial Hospitals Association, 239 F. 3d 1128 (9th Cir. 2001), and Dark v. Curry County, 2006 U.S. App. LEXIS 16838 (9th Cir. 2006), 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.  Recent guidance from the EEOC has cautioned that if the misconduct resulted from a disability, the employer must be able to demonstrate that the conduct rule is job related and consistent with business necessity.  (An example of this would be that an employer is prohibited from terminating an employee who attempted suicide due to depression.  On the other hand, an employer can discipline an employee who violates safety rules at a construction site, even if the violation is due to a disability.)


On the one hand, the Gambini decision can be seen as an odd ruling by one Court in one Circuit.  However, employers should be aware that decisions of this nature could be a trend in the Ninth Circuit and in Washington.  Employers should take care to exercise caution when making disciplinary decisions regarding employees whose conduct may be due to disability.  If the misconduct resulted from a disability, the employer must be able to demonstrate that the conduct rule is job related and consistent with business necessity.

Some legal professionals, particularly plaintiffs’ attorneys, do not believe that the Gambini decision is dramatic or controversial.  They see it as an extension of previous court rulings, and believe that employers are required to tolerate and accommodate unusual and disruptive conduct if the conduct is caused by a disability.

Guidelines for Employers

–           Remember that unlike other areas of discrimination law, which require the same treatment for everyone, disability discrimination law does provide more protection for individuals with disabilities, and requires specific actions on the part of employers.

–           An employee must be able to perform the essential functions of the position with or without accommodation.

–           Have clear, written rules of conduct and a step disciplinary process.  Make sure that these rules are job related and consistent with business necessity.

–           Make sure to apply these conduct rules consistently to all employees; avoid inconsistent application of the rules and avoid applying them only to certain employees or certain classes of employees.

–           Have written detailed job descriptions that incorporate good conduct as part of the job requirements.  For example, if it is relevant to the particular job, you may include in the job description:  regular attendance, the ability to maintain a calm demeanor in a stressful environment, the ability to interact with co-workers in a variety of situations, the ability to clearly communicate verbally and in writing, and the ability to provide calm and polite customer service.

–           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.  An example would be working out a schedule change so that the employee does not violate attendance rules.

–           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.

–          Rules regarding the use of drugs and alcohol can be enforced.

–          Think about how closely your fact situation is to the facts in Gambini.  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 your facts are to the facts are in the Gambini case, the more careful you should be about imposing discipline.

–           Employers have the ability to argue business necessity, undue hardship, and direct threat defenses.


There are many great reasons to become a member.

Learn More

Multi­cultural Resource Guide

This guide lists established and emerging resources that reflect and celebrate cultural diversity in our area.

View Guide