Addressing employee conduct violations related to disability

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This series will showcase three papers from the Fall 2010 Disability in the Law class at the Seattle University School of Law. The class was taught by David Carlson, associate director of legal advocacy for DisAbility Rights Washington.

After Gambini, Is Workplace Misconduct Caused by an Employee’s Disability Protected by Seattle University Law School gradate Sarah Rajski analyzes the future of disability related workplace misconduct laws following Gambini v. Total Renal Care , a 2007 a U.S. Court of Appeals for the 9th Circuit case ruling that an employer cannot necessarily fire an individual for violating a conduct rule where the conduct violation was related to his or her disability.

In similar previous cases, courts have ruled in favor of employers if the individual caused “a direct threat,” or if the misconduct was “egregious or criminal.” The paper discusses the future of what can be considered “egregious or criminal” and points out that the Gambini court focvused on the employer’s prior knowledge of the individual’s disability.

Rajski argues that Gambini suggests employees with disabilities are best served by informing their employers of their disabilities if they want protection from termination for conduct violations.

“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,” Rajski states.