Your employee has a short fuse and exhibits anger and irritability on the job. She is also easily distracted and has a hard time concentrating and assigning priorities to tasks. So you set up a meeting with her to discuss these issues. When she comes into your office, you give her a plan to improve her performance. When she finishes reading it, she throws it across your desk and spews profanities at you as she tells you how unfair the criticism is. Slamming the door on her way out, she curses another employee and goes to her cubicle where she starts kicking and throwing things.

Of course you can fire her. Think again. Not according to a just-published case issued by the 9^th Circuit Court of Appeal, Gambini v. Total Renal Care, Inc.

Ms. Gambini has bipolar disorder, which is a disability. If her “violent outburst” was a consequence of her bipolar disorder, then it is protected under Washington State’s version of the American’s With Disabilities Act (ADA).

The Court also said that the result is consistent with prior 9^th Circuit rulings on the ADA. In Humphrey v Memorial Hospitals Association, the employee could not be terminated for her tardiness and absenteeism arising out of obsessive compulsive disorder. So the rule is that conduct resulting from a disability cannot be the basis for a termination.

There are two exceptions. The first is included in the ADA itself and allows an employer to apply the same standards for job performance and behavior to alcoholics and drug abusers as it does to its other employees. (42 U.S.C. S 12114(c)(4)). The second is not so firmly rooted and applied to "egregious and criminal conduct". 

The ruling puts employers in a bind. It can’t fire an employee who might be disrupting others, acting out or engaging in violent or threatening behavior if the conduct stems from a disability and it’s not (a) drug or alcohol-related, or (b) eggregious or criminal conduct. For those tough situations, it’s best to consult your legal counsel.