Ms. Wills worked for Orange County and was terminated for violating the County’s policy against threatening conduct and/or violence in the workplace. Willis submitted evidence that her behavior in violation of the policy was due to a disability – her bipolar disorder. Wills also submitted evidence that the County was aware that she suffered from bipolar disorder, and that the disorder caused her threatening conduct. Wills v Superior Court, __Cal.App.4th ___ (April 13, 2010).
Before this case, no California court, nor any court interpreting California’s Fair Employment & Housing Act, had ever ruled on the legality or illegality of taking action against an employee for conduct – considered by the employer to be misconduct – which was caused by a disability. The employer urged the court to adopt its position that, if the employer asserted that the firing was due to the conduct rather than the disability, its action was protected.
The Court of Appeals ruled for the employer, and declared that the employer’s action in firing Ms. Wills for threating conduct did not constitute disability discrimination. The Court did, however, refrain from the wholesale adoption of the employer’s position, refusing to extend its holding beyond the facts of the case. In other words, the Court stated that the termination was justified in the limited circumstances presented, where the conduct included threats of violence or violence.
The Court opined that “consistent with the federal courts’ interpretation of the ADA, we interpret FEHA as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers.” The Court went on to warn, “We express no opinion on whether FEHA permits an employer to distinguish between disability-caused misconduct and the disability itself in any factual setting other than threats or violence against coworkers.”
This holding should not, in any way, result in any further encroachments on the rights of disabled employees other than where violence or threats of violence occur. According to the Court, “We emphasize we are not presented with a situation involving misconduct impacting an employee’s job performance the employer potentially could address through accommodation. For example, an employer could accommodate an employee whose disability caused chronic tardiness or absenteeism by altering the employee’s work schedule.” Let’s just hope the courts draw the line tight here, and that this case is not a slippery slope to courts being tugged at by employers to find further reasons not to reasonably accommodate a disabled employee.
Jody LeWitter
May 26, 2011