The California Fair Employment and Housing Act (FEHA) prohibits discrimination based upon disability as long as the employee can do the “essential functions” of the job, with or without reasonable accommodation. That prohibition includes discrimination based on a mental disability, and in particular bipolar disorder. (Govt. Code §12926(i)(1)(2)(3)(4)(5)).
A bipolar disorder is a mental disability marked by mood swings between depressive and manic episodes. Manic episodes are manifested by irritable mood as well as aggressive behavior, both physical and verbal. Persons experiencing a manic episode may also have problems with impulse control, saying socially inappropriate statements and even making threatening comments. The condition can be treated by medication, but even then the manic episodes may still occur.
So what is an employer to do when an employee with a known mental disability threatens harm to a co-employee? The employer in such a situation is required to provide all employees with a safe place to work under California Labor law (Labor Code §6400-6404) and at the same time cannot discriminate based on upon a mental disability. This particular dilemma confronted a unique employer; the Orange County Superior Court in the case of Wills v. Superior Court of Orange County (2011) 194 Cal App 4th 312 (petition for Review denied). The resulting decision is narrow, but supports an employer’s termination of the mentally disabled employee for violating the employer’s violence in the workplace policy.
Wills began working for the Orange County (OC) Court in 1999 and eventually became a Court Clerk. She took numerous leaves during her time with the Court to treat her bipolar disorder. While she told some supervisors she suffered from depression, neither she nor her physician disclosed the actual condition to the OC Court.
In 2007 Wills was transferred to the Anaheim Police Department lockup facility to handle video arraignments. It was while at the lockup facility she threatened to put an officer and facility assistant on her “Kill Bill” list when they failed to promptly unlock an entry door and left her in the summer heat. The Anaheim Police Department requested she be transferred from their facility based on her threat and aggressive behavior.
Wills’ doctor concluded that Wills was in the early stages of a manic episode and disabled her from work. It was at this point that the OC Court became aware of her mental disability. While on disability she forwarded a ring tone to several people including a coworker. The ring tone contained profanity and became increasingly loud, culminating in a shrieking voice which stated, “I’m going to blow this bitch up if you don’t check your messages right now!… Fuck you.” She also sent emails to family, friends and coworkers which rambled wildly and displayed anger, irrationality and threats of retribution.
After being released to return to work she was suspended and an investigation was initiated which resulted in her termination. During the investigation the OC Court received a doctors report from Wills’ treating physician indicating her conduct resulted from her mental disability and indicating she was not a danger to herself or others. The employer terminated Wills for violating its Employee Handbook provisions prohibiting verbal threats, threatening behavior and violence.
Wills filed suit alleging disability discrimination along with other causes of action. Summary Judgment was granted on the employer’s motion based on procedural grounds, but on review the Court of Appeals dealt with the substance of her allegations thereby making moot the procedural defects the Superior Court found. The resulting decision affirmed the grant of Summary Judgment in favor of the OC Court.
Relying on Federal Law and the EEOC’s interpretation of the Americans with Disabilities Act (ADA),the California Court of Appeals held that an employer may distinguish between disability caused misconduct and the disability itself in the narrow context of violence in the workplace.
The Court specifically limited the holding stating:
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 (See Humphrey v. Memorial Hospitals Association (2001) 239 F.3d 1128.). 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 and violence against coworkers.The California Supreme Court denied review so the Wills case now represents the law applicable to disability caused misconduct which implicates violence in the work place.
However an open question exists on whether an employer can distinguish between the disability and disability caused misconduct relating to other violations of employment rules. That analysis must be conducted on a case by case basis and involve the issue of “reasonable accommodation.” Prior cases have held an employer must consider altering the schedules of employees whose absenteeism and tardiness are caused by mental disabilities. That conduct is also typically prohibited or managed through work rules in an employee handbook. Simple reliance upon, and strict application of, work rules cannot substitute for considering the mental and physical disabilities of employees and the accommodations available to allow them to do their jobs.