In Kao v. University of San Francisco, a California appellate court upheld a jury’s verdict that the University of San Francisco (“USF”) lawfully terminated a professor who refused to undergo a fitness-for-duty examination.
Kao was a math professor at USF. In 2008, he began exhibiting strange and intimidating behavior. He glared and stared at colleagues; clenched his fists; had a “wild cackling laugh”; stood inappropriately close to colleagues’ faces when speaking to them; lashed out at others when they asked how his ill mother was doing; clenched his jaw; yelled and screamed at his co-workers; and forcefully hit colleagues on the shoulder. This behavior followed Kao complaining to USF about the lack of faculty diversity among the math and computer science departments.
After receiving various complaints about Kao’s behavior, USF launched an investigation, interviewing many of Kao’s colleagues. They described his behavior as terrifying and intimidating, and claimed that they would not be surprised if he hurt himself or others. Disturbed by this feedback, USF contacted a forensic psychologist skilled in identifying workplace threats. He recommended that Kao undergo an independent medical examination to determine whether he was fit for duty (including whether he posed a danger to himself or others). USF engaged another psychologist to perform the examination and instructed him not to provide USF with any medical diagnosis or clinical information – he would simply assess Kao and report back to USF whether he was fit for duty. But Kao refused to cooperate, claiming that USF had no legal basis to require the exam. Following several unsuccessful attempts to have Kao examined, USF terminated his employment.
Kao sued USF for various causes of action, including violation of California’s Fair Employment and Housing Act (“FEHA”), for terminating him for his refusal to undergo the examination. A jury ruled in USF’s favor and Kao appealed. The appellate court affirmed the decision, holding that, under FEHA, USF had the right to require a fitness-for-duty examination of Kao since it was “job related and consistent with business necessity” and tailored to assess whether he could perform the essential functions of the job or whether he posed a danger to himself or others. Given how frightened Kao’s colleagues and other school administrators were of him, and USF’s duty to maintain a safe campus, USF could require that Kao undergo such an examination.