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My disability made me do it

June 9, 2011

A California court of appeal recently held that you can’t threaten your coworkers with violence, even if the threats were the result of a mental disability.  Well, you can do it, but you can also get fired for doing it.

In Wills v Superior Court, an employee with bipolar disorder physically threatened her coworkers.  After she was fired, she (and her doctor) said the disorder made her do it, and sued for disability discrimination.  The court of appeal held that an employer may discipline an employee for violence or threats of violence, even if they were caused by the employee’s disability.

[T]here is no uniform rule among the federal circuits regarding whether an employer may distinguish between disability-caused misconduct and the disability itself.  We may reconcile [federal cases addressing this subject], however, if we focus on the specific conduct giving rise to the adverse employment action.  The authorities consistently hold an employer may distinguish between disability-caused misconduct and the disability itself when the misconduct includes threats or violence against coworkers.

[C]onsistent 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.  If employers are not permitted to make this distinction, they are caught on the horns of a dilemma.  They may not discriminate against an employee based on a disability but, at the same time, must provide all employees with a safe work environment free from threats and violence.  We believe our interpretation of FEHA strikes the appropriate balance between protecting employees suffering from a disability and allowing employers to protect their employees and others from threats of violence and the fear that a hostile or potentially violent employee will act on those threats.

The court expressly limited its rule to the facts of the case.  For instance, the court noted, if the disability-related conduct could be addressed with an accommodation, the employer might have to provide it and withhold discipline.

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.  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.

Businesses faced with this particular situation now have a roadmap of sorts to follow.  First, protect your employees from violence.  Second, if possible, address disabilities and accommodations through the interactive process — and document everything. Termination and discipline should be last resorts in these circumstances.

Most issues involving mental disability in the workplace are more nuanced, however, and employers will need to be more accommodating of an employee’s disability and how it can be addressed short of termination — or else face significant liability.

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