Failure to Comply with Fitness for Duty Justified Termination

In the case of Kao v. University of San Francisco, 229 Cal.App.4^th 437, 177 Cal. Rptr. 3d 145 (2014), the plaintiff was terminated from his employment after refusing to participate in an examination to determine his fitness for duty (FFD). The examination was ordered after the plaintiff exhibited behavior that was viewed as threatening. After the termination, the plaintiff brought suit against the University, alleging that he had been discriminated against under the Fair Employment and Housing Act (FEHA) based on a disability.

John Kao was employed as a mathematics professor by the University of San Francisco for 18 years. Kao began his employment in 1991. In 2008, Kao began to act in a confrontational manner with co-workers. These employees believed that Kao’s actions might pose a real threat to their safety and reported the actions to the University. After an investigation, and in consultation with experts specializing in threat assessments and violence in the workplace, the University of San Francisco notified Kao that he needed to undergo an FFD examination. When Kao refused to participate in the exam, the University placed him on leave. The University attempted to resolve the situation, but when Kao refused to comply with the examination request, he was terminated. He subsequently filed the lawsuit against the school.

The University of San Francisco based its argument that it was justified in terminating Kao on the fact that FEHA permits an employer from mandating an FFD if there is evidence that the exam is necessary for the operation of the business and related to the employee’s job. See Cal. Gov’t. Code § 12940(f)(2). Kao asserted that the FFD exam was not necessary and not job related. In addition, Kao argued that the University had failed to engage in interactive discussions to resolve the issue with the FFD exam. FEHA does provide that an employer must take steps to accommodate an employee’s disability if it does not create an undue hardship for the employer to do so. In addition, there is a provision that requires an employer to engage in an interactive process to arrive at reasonable accommodations. See Cal. Gov’t. Code §§ 12940(m) and (n).

Kao pursued a case against the University based on discrimination because of a disability. The jury determined that there was no actionable discrimination and ruled in favor of the University of San Francisco and Kao filed an appeal. The appellate court analyzed the record and reviewed the argument that Kao had made that the University had failed to engage in the interactive process before ordering him to undergo a fitness for duty examination. The court determined that the trial court had rendered the correct decision. In reaching its decision, the court held that an FFD examination did not qualify as a reasonable accommodation, which meant that the University did not have to engage in the interactive process with Kao before mandating the exam. In addition, the appellate court found that Kao had not made the University aware of his disability, which would have made the interactive process inapplicable unless Kao initiated it upon notification of the disability.

The appellate court also rejected the argument that the FFD was not job-related and necessary for the business of the University. The court determined that that this argument was meritless. Using the FFD exam is an important part of determining whether a person poses a danger to co-workers and others at the University of San Francisco. Based on the multiple reports of Kao erratic and confrontational behavior, there was a justification for mandating the examination. The court found that it was reasonable for a jury to have determined that the FFD examination was job-related and in accordance with necessary business activities. The appellate court affirmed the lower court’s decision in favor of the University of San Francisco.

This case elucidates the relationship between an employee’s request for reasonable accommodations on the basis of a disability and the interactive process that is required under the Federal Employment and Housing Act. In addition, it clarifies when the interactive process is not necessary when an employer has ordered a fitness for duty examination in order to determine if an employee poses a potential threat to co-workers and others in a workplace. Although this is an important decision, employers should not become less vigilant in ensuring that they are complying with the provisions of FEHA and other applicable statutes and regulations as the danger that Kao may have posed was a critical part of the appellate court’s decision in this case.

If you have an issue with potential discrimination relating to a person’s disability, whether as an employee or an employer, contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.