A Safe Workplace Trumps a Reasonable Accommodation

Second Quarter 2011Newsletters California Update Employment Law

Even if their conduct is the result of a disability, employees who threaten or commit acts of violence against co-workers are not entitled to keep their jobs.

Until recently, there has been surprisingly little to guide California employers in handling employee misconduct attributed to a disability. Wills v. Superior Court of Orange County (April 13, 2011, G043054), __ Cal. App. 4th __, takes a first, tentative step in addressing employers’ duties in dealing with bad behavior caused by a disability.

In this case, a court clerk suffered from bipolar disorder, a mental illness characterized by depressive and manic episodes. During a manic episode, the clerk could become verbally and physically aggressive and blurt out inappropriate and threatening comments.

One day, the clerk had a manic episode. She angrily swore and yelled at employees about making her wait in the heat before granting her entry to their secured workplace. She told certain colleagues that she had added them to her “Kill Bill” list. These colleagues felt threatened and reported the incident. Shortly after this incident, the clerk forwarded threatening e-mails and a cell phone ringtone to various colleagues. She was thereafter discharged for threats and poor judgment. The clerk claimed that her comments were just jokes.

Ultimately, the clerk sued her employer alleging that her termination was discriminatory because a disability, her bipolar disorder, caused the behavior in question. Her employer argued that it was entitled to take corrective action to address threats of violence regardless of any disability. The California Court of Appeal affirmed the trial court’s dismissal of the case. The court held that an employer can take corrective action to address disability-related misconduct “when the misconduct includes threats or violence against co-workers.” The misconduct in this case could not be addressed through a reasonable accommodation because the clerk never requested one. The court expressed no opinion on an employer’s ability to address disability-related misconduct that did not involve threats or violence.

Before this case, there was no published authority that addressed whether the Fair Employment and Housing Act (FEHA) “equates disability-caused misconduct with the disability itself.” Now there is support for the proposition that an employer’s duty to provide a safe workplace trumps its duty to accommodate mentally disabled employees. As for less serious forms of disability-related misconduct, such as tardiness, employers are advised to carefully consider whether the behavior can be addressed through a reasonable accommodation before disciplining or terminating an employee.