For the first time, a California court has held that, under the Fair Employment and Housing Act (FEHA), an employer may distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers. 

In the case of Wills v. Superior Court, Linda Wills was a clerk for the Orange County Superior Court (OC Court) and suffered from bipolar disorder with intermittent bouts of manic episodes.  Wills was newly assigned to a city police department’s lockup facility and, one morning upon her arrival to the department, she angrily swore and yelled at employees, accusing them of intentionally leaving her in the hot sun as she waited to be let in to the secured facility.  She told a police officer and another employee that she had added them to her “Kill Bill” list for leaving her in the heat.  The employees understood Wills’ “Kill Bill” statement was a reference to the film in which the main character made a list of people she intended to kill. The city’s police department reported the incident to the OC Court resulting in her removal from the assignment.  Wills was unaware that she was in the early stages of a manic episode.  Within days, Wills’ doctor placed her on medical leave.

While on leave, Wills forwarded strange and alarming emails and cell phone ringtones to co-workers.  The emails expressed anger toward coworkers and family members who she viewed as betraying her, indicating that “God” would ensure that Wills’ family and friends “will pay for what they put [me] through…” After several weeks, Wills’ doctor released her to work without restrictions.  The OC Court placed her on paid administrative leave pending an investigation into what many complained were threats of violence.

Following the investigation, Wills was terminated by the OC Court for threatening a police officer and other department personnel, threatening and inappropriate communications with co-workers, misuse of court resources, and poor judgment, all in violation of the OC Court’s written policy.  Wills filed a complaint with the Department of Fair Employment and Housing (DFEH) alleging that the OC Court had discriminated against her by denying her family and medical leave.  The OC Court responded to the DFEH charge by asserting that Wills had been granted all requested leave and that it had not terminated her because of her disability.

Wills later brought suit against the OC Court asserting several causes of action.  After summary judgment was granted in favor of the OC Court, Wills appealed.  The Court of Appeal upheld the trial court’s grant of judgment in favor of the OC Court.  In particular, as to Wills’ cause of action for disability discrimination, the Court  found that FEHA authorizes an employer to distinguish between disability-caused misconduct and the disability in the narrow context of threats or violence against coworkers. 

Applying the McDonnell-Douglas burden shifting approach used in motions for summary judgment, the Appellate Court initially found that Wills stated a prima facie case of disability discrimination because there was no evidence in the record that that Wills’ misconduct toward her coworkers prevented her from performing the essential duties of her job.  Instead, the Court held that Will’s threats of violence were better addressed at the next stage of the burden shifting approach. 

The burden then shifted to the OC Court to articulate a legitimate, nondiscriminatory reason for the termination.  It was here that the Court of Appeal held FEHA authorizes an employer to distinguish between disability-caused misconduct and the disability itself “in the narrow context of threats or violence against coworkers.”  This saves employers from the dilemma of either being liable for disability discrimination or failing to provide a safe work environment for all employees.  However, the Court was clear that terminating an employee in this situation is different than situations involving misconduct impacting an employee’s job performance where the employer could potentially address the performance problems through an accommodation.  The Court held that under the circumstances, the OC Court’s termination of Wills for her violation of the OC Court’s written policy against making threats in the workplace was a legitimate, nondiscriminatory reason for Wills’ termination.

The burden therefore shifted back to Wills to prove that the OC Court’s claimed legitimate,  nondiscriminatory reason for her termination was merely a pretext for discrimination based on Wills’ disability.  This was a burden Wills could not meet.

This is an excellent case for employers who may be given the “Hobson’s choice” of risking liability for disability discrimination if it chooses to discipline an employee for disability-caused threats of violence or risking its own negligence for failing to provide a safe environment for all employees.