Employers are aware that the Fair Employment and Housing Act (“FEHA”) generally prohibits discrimination on the basis of disability.  But can an employer terminate or discipline an employee based on behavior that is caused by a disability?

The Court of Appeal for the Fourth District recently addressed this in Wills v. Superior CourtIn that case, the employer terminated an employee because she made threats of violence against coworkers in violation of the employer’s written policy.  The behavior was caused by her bipolar disorder, and she claimed that the employer violated FEHA.

The plaintiff argued that all conduct resulting from a disability should be considered part of the disability, and employers are therefore barred from basing a termination on any disability-caused conduct.  Employers have sometimes urged that employers should be permitted to discipline or discharge employees based on any disability-caused misconduct.  The Wills court did not adopt either position, but instead ruled that in the context of threats of violence against co-workers, it was not a violation of FEHA to terminate an employee who made such threats, even if the conduct was caused by her disability.  The court noted the obligation of employers to provide a safe workplaces, and also noted that the employer had an express policy prohibiting threats.  The court was careful to emphasize, however, that it was limiting its ruling to the factual setting of threats or violence against coworkers.

In any other situation, then, where an employee’s disability-based conduct interferes with or disrupts the workplace, the employer should engage in the interactive process to determine whether or not the employee can perform the essential job functions with or without an accommodation.  For example, while employees may generally be subject to discipline for excessive absenteeism, if the absenteeism is caused by a disability, the employee should attempt to accommodate the employee. 

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