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From Marc B. Koenigsberg of GT Sacramento. Thanks and welcome to Marc! 

Last month, the California Court of Appeal ventured into the uncharted area of state law regarding how an employer may address disability-caused misconduct involving threats or violence against coworkers. In Wills v. Superior Court of Orange County (G043054), the Court of Appeal held plaintiff Linda Wills’ Fair Employment and Housing Act (FEHA) claim failed because her misconduct provided a legitimate, nondiscriminatory reason for her termination. 

Wills was diagnosed with bipolar disorder in 1997. She later began working for the Orange County Superior Court in 1999. While carrying out her assignments at the Anaheim Police Department’s lockup facility, Wills angrily swore and yelled at police department employees, told them she had added them to her "Kill Bill" list of people to harm, forwarded a cell phone ringtone to several people which contained a video with threatening messages, and sent numerous rambling emails describing harm to the employees. 

After completing an internal investigation, her employer terminated Wills’ employment, citing her threatening conduct which violated its employee handbook provisions prohibiting verbal threats, threatening behavior and violence. Wills sued under FEHA, and the Orange County Superior Court moved for summary judgment. The trial court granted summary judgment, and the Court of Appeal affirmed.

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Relying on the cases interpreting and applying the Americans with Disabilities Act, the appellate court distinguished between a disability and disability-caused misconduct in the narrow context of threats or violence against coworkers. The court explained that its belief that its interpretation of FEHA appropriately balanced the statute’s goal of protecting from discrimination those employees suffering from a disability and the obligation of 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 pointed out that it was not addressing a situation involving misconduct impacting an employee’s job performance (e.g., chronic tardiness, absenteeism, etc.) that the employer could potentially address through an accommodation. The court also noted that it was expressing 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. Instead, the court limited its holding to the situation where misconduct involving threats or violence against coworkers is deemed a legitimate, nondiscriminatory reason for terminating an employee. The court’s analysis focused only on the making of the threats, not on whether the employee would carry out the threats. Accordingly, an employer may properly consider its duty to provide a safe workplace paramount to the rights of an employee with a disability where that employee makes threats against coworkers and an accommodation isn’t available.  

While this is a rational, common-sense outcome, employers should nevertheless be cautious when taking disciplinary action against an employee who has a known disability or is regarded as disabled, as the Wills decision is limited to its facts, and may not stand for a general proposition that an employer may discipline a disabled employee whenever the disability manifests itself in a manner that is contrary to the employer’s interest. One lesson, however, from Wills: employers who employ a disabled employee who is allegedly making threats in the workplace should be sure to document the threats. This will help establish that there is a legitimate, non-discriminatory reason for terminating the employee.

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.