A California Court of Appeals has held that an employer may discharge an employee for threatening or engaging in violence, even if that conduct was caused by a disability. In Wills v. Superior Court of Orange County, No. G043054 (4th Dist. April 13, 2011), a court clerk with bipolar disorder swore and yelled at co-workers over a workplace incident and stated that she had added two workers to her “Kill Bill list,” which witnesses described as threatening. Wills blamed her conduct on bipolar disorder, but her employer discharged her anyway. When she sued for disability discrimination under the Fair Employment and Housing Act, the trial court granted summary judgment for the employer. The Court of Appeals affirmed, holding that an employer may take adverse action against an employee for violence or threats of violence, even if that conduct is caused by a disability.

In doing so, the Court expressly declined to consider whether other acts of misconduct might also be subject to disciplinary action when caused by a disability. Instead, it cited an EEOC “Enforcement Guidance” for the proposition that the federal Americans with Disabilities Act does not prohibit disciplinary action for disability-caused violence or threats in the workplace. The Court also cited a Tenth Circuit decision holding that, under the ADA, “there are certain levels of disability-caused conduct that need not be tolerated or accommodated by employers.” See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1087 (10th Cir. 1997).

California employers should continue to be wary of taking action against employees for disability-caused misconduct. But, for now at least, it appears that violence and threats in the workplace need not be tolerated as accommodation of a disability.