Ruling in Bipolar-Threat Case Brings Mixed Legal Opinions

Like many employers, the Superior Court of Orange County (California) has a written policy that prohibits verbal threats or threatening behavior.

In October 2007, it fired Linda Wills from her job as a court clerk for making threats toward co-workers—even though she was experiencing a severe manic episode of her bipolar disorder when her misconduct occurred and her doctor said she had never posed a threat to anyone.

Another Orange County court, the 4th District Court of Appeal in Santa Ana, has now given employers an important victory by upholding Wills’ termination. “[T]he OC Court is entitled to terminate an employee who violates its written policy against workplace threats and violence, even if a disability caused the misconduct,” the appeals court ruled. It also determined that threats against co-workers “provide a legitimate, nondiscriminatory reason for discharging the employee” if the employer has only an “honest”—rather than an objectively “reasonable”—belief that a worker violated its written policy. Under the honest belief standard, courts require only that “an employer honestly believed its reason for its actions.”

Employer-side lawyers say the decision balances the legal obligation of employers to accommodate a worker’s disability with their responsibility to provide a safe workplace. “It clears up what the employer can do to address disability-related behavior that involves an employee who’s a threat to himself or a co-worker,” says Jeffrey Polsky a partner at Fox Rothschild in San Francisco. “An employer’s worst nightmare is an employee becoming violent.”

But Wills’ lawyers say the appeals court has given employers far too much latitude. The opinion “will open the door for the worst prejudices and psychophobic fears of employers and co-workers to limit employment opportunities for individuals with psychiatric disabilities,” they warned in a petition asking the California Supreme Court to review the case. Any “weird” behavior, they said, could now be grounds for termination.

The decision could have a nationwide impact. Wills sued under California’s Fair Employment and Housing Act, or FEHA, which, legal experts say, provides very similar protections for mentally disabled workers as the federal Americans with Disabilities Act.

Wills, who began working for the Orange County court in 1999, took medical leaves to treat her disorder but did not disclose to her employer that she was bipolar. In July 2007, Anaheim Police Department employees complained she had become angry with them after she arrived at the lockup facility to help with police arraignments. At one point, they said, she told an officer she had added him and another employee to her Kill Bill list, referring to the movie about a female assassin.

Wills’ doctor put her on medical leave a few days later. But while she was off work, she sent co-workers a cellphone ring tone with a threatening audio message and rambling emails in which she described them as “evil bitches.” During its investigation, her employer learned she was bipolar but fired her anyway for, among other things, “Threatening and inappropriate communications with co-workers.”

The Santa Ana court’s decision is clearly a departure from previous state and federal rulings. The U.S. 9th Circuit Court of Appeals in San Francisco, which has jurisdiction over California, has found that “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for the termination.” The 2nd and 10th circuits, in New York City and Denver, respectively, have reached similar conclusions, and the 10th Circuit said in 2001, that the ADA protects both “disability” and “disability-related misconduct.” State courts in California and elsewhere have previously allowed employers to terminate mentally disabled employees only if the conduct was criminal or involved drug or alcohol abuse.

But the 4th District Court of Appeal affirmed a trial judge who summarily dismissed Wills’ FEHA claims. “[W]e 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 co-workers,” Justice Richard Aronson wrote for the court. Wills’ employer also “honestly believed Wills violated its written policy against verbal threats, threatening conduct and violence,” he said.

Joshua Furman, a lawyer in Beverly Hills representing Wills, says the 4th District has created a dangerous new exception that authorizes employers “to discriminate against somebody because their behavior might be a little odd.” He stresses that there was no need for the Orange County Superior Court to fear for employee safety because Wills never made an “actual” threat. “Under this decision, the law now provides employers carte blanche to terminate anyone with a behavioral disability, even if that person’s disability does not pose a threat to anyone,” he wrote in the Supreme Court petition.

But the high court decided not to review the case. Lawyers for the Orange County court have accused Wills’ lawyers of “fabricat[ing] fears that the Court of Appeal has broadly disregarded the rights of disabled employees” and say Wills was terminated not for posing a threat but “because she made threats.”

“If an employee is making threats, not just losing their temper, the courts are right to be very concerned about doing anything they can to address these situations,” says Polsky, who is not involved in the case.

Workforce Management, August 2011, pgs. 8-9 — Subscribe Now!