Bay Area Employment Lawyer Blog

Ms. Wills worked for Orange County and was terminated for violating the County's policy against threatening conduct and/or violence in the workplace. Willis submitted evidence that her behavior in violation of the policy was due to a disability - her bipolar disorder. Wills also submitted evidence that the County was aware that she suffered from bipolar disorder, and that the disorder caused her threatening conduct. Wills v Superior Court, __Cal.App.4th ___ (April 13, 2010).

Before this case, no California court, nor any court interpreting California's Fair Employment & Housing Act, had ever ruled on the legality or illegality of taking action against an employee for conduct - considered by the employer to be misconduct - which was caused by a disability. The employer urged the court to adopt its position that, if the employer asserted that the firing was due to the conduct rather than the disability, its action was protected.

The Court of Appeals ruled for the employer, and declared that the employer's action in firing Ms. Wills for threating conduct did not constitute disability discrimination. The Court did, however, refrain from the wholesale adoption of the employer's position, refusing to extend its holding beyond the facts of the case. In other words, the Court stated that the termination was justified in the limited circumstances presented, where the conduct included threats of violence or violence.

The Court opined that "consistent with the federal courts' interpretation of the ADA, we 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 coworkers." The Court went on to warn, "We express 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."

This holding should not, in any way, result in any further encroachments on the rights of disabled employees other than where violence or threats of violence occur. According to the Court, "We emphasize we are not presented with a situation involving misconduct impacting an employee's job performance the employer potentially could address through accommodation. For example, an employer could accommodate an employee whose disability caused chronic tardiness or absenteeism by altering the employee's work schedule." Let's just hope the courts draw the line tight here, and that this case is not a slippery slope to courts being tugged at by employers to find further reasons not to reasonably accommodate a disabled employee.

Jody LeWitter
May 26, 2011

Nothing is more important than filing a lawsuit within the applicable time limits. One never knows if the court reviewing the case will be sympathetic to an argument that a claim wasn't really filed late. The best and only lesson to be learned is never to put yourself in the position to argue that a claim wasn't really late. This is unfortunately what Mr. Hall learned when filing a lawsuit for discrimination under the California Fair Employment & Housing Act (FEHA).
There are really two deadlines for filing a discrimination claim under the FEHA. First, an employee must exhaust his or her administrative remedies by filing a charge of discrimination with the California Department of Fair Employment & Housing (DFEH) (note: employees can usually file alternatively with the federal Equal Employment Opportunity Commission). The statute of limitations to file this administrative charge with the DFEH is generally one year (there is a 90 day extension for late discovered claims).
Then, if an employee then wants to sue in court, the DFEH will generally issue to the employee a right-to-sue letter. This letter itself gives the employee the second deadline, which is when the employee must file a complaint in court. According to the FEHA, an employee has one year to file in court (there are sometimes exceptions such as equitable tolling, continuing violations or some circumstances where one agency - either the DFEH or EEOC - is still investigations or conducting some further determinations or reviews).
The case of Hall v Goodwill Industries of Southern California (March 16, 2011) __ Cal.App.4th __, addresses the question of, for purposes of a right-to-sue letter: "one year from what?" The California Government Code, Section 12965(b) provides that the employee must file a lawsuit "within one year from the date of that notice."
Mr. Hall's right-to-sue letter was dated December 24, but received by his attorney on December 31. Hall filed his complaint in court one year before he received notice of the right-to-sue letter, but not one year before the right-to-sue letter was dated.
The Court held that the language of the FEHA (i.e. "within one year from the date of that notice") was unambiguous and clear, and therefore Mr. Hall should have known that he had to file one year from the date the letter was "issued" or dated, rather than one year from when he received it.
The statute refers to the right-to-sue letter as "the notice" and thus I can see how someone might determine that he or she has one year from the date of the letter. However, I can equally imagine that it would be easy to read the term "the notice" as when the employee received notice. Notice can be both sent and received, on different days, causing confusion. Certainly the drafters of this statute could have made the language more crystal clear. Calling less than pristine statutory language "unambiguous" is disingenuous and unfair. One would have hoped that a court would use the broader and more liberal interpretation of "the notice." That it did not is simply another warning to employees and their lawyers to get their cases filed, and remember that a court may also come up with an interpretation of the law that defies logic!

Jody LeWitterMay 1, 2011