The federal Americans with Disability Act (ADA) and California’s Fair Employment and Housing Act (FEHA) prohibit an employer from discrimination in hiring, discipline and termination of employees on the basis of disability, whether physical or mental. A recent decision of the California Courts of Appeal helpfully confirms for employers that this prohibition against disability discrimination does not extend to actual workplace misconduct by an employee, particularly including threats or violence against coworkers, even if such misconduct is alleged to be caused by an underlying disability (Wills v. Superior Court, California Court of Appeal No. G043054, May 12, 2011).  Similar issues have also arisen in the case of employees with alcohol or drug addictions, where California law requires employers to accommodate an employee’s program of treatment (Labor Code §1025), but does not shield an employee from adverse job consequences for intoxication at work or other violations of legitimate, nondiscriminatory company policies.

As reported by our employment and litigation lawyer Scott McLeod, the Wills court ruled that in the context of threats of violence against co-workers, it is not a violation of FEHA to terminate an employee even if the conduct was caused by disability such as bipolar disorder.  The court noted the obligation of employers to provide a safe workplace, and emphasized that its ruling is confined to the factual setting of threats or violence.  Absent this or other safety and emergency concerns, an employer should generally engage in the interactive process to determine if the employee with a disability can continue to perform essential job functions with reasonable accommodation and without undue employer hardship.  For Scott’s report, click here.

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