Employers Not Required to Investigate or Accommodate Unknown Disabilities

Reasonable accommodation of a qualified employee’s disability is required under both the federal Americans with Disabilities Act ("ADA") and the California Fair Employment and Housing Act ("FEHA").  Under each law, once an employer is aware of an employee’s disability and its impact on job performance, it must enter into an interactive process to determine whether reasonable accommodation is available that will allow the employee to perform the essential functions of their job.

But when does an employer become aware of an employee’s disability?  While some disabling conditions are obvious, others are more subtle or look identical to other potential issues.

Employers received guidance on state-law requirements in a recent California appellate court opinion, Husband v. Target Corporation.  In the case, an employee exhibited several instances of “disturbing” behavior such as becoming upset with co-workers, using profanity, hitting himself, stating that work orders “were themselves ‘laughing at him,’” and claiming he had killed his stepmother by speaking a particular word.  This and similar behavior frightened other employees, eventually leading to his termination.

Significantly, despite human resources comments that the employee “get examined by a doctor/psych professional” and that “a hospital would be better than the police” to help him, the employee had not informed management of any disability, requested accommodation, and had not disclosed “any mental health diagnosis.”

After his termination, the former employee hired counsel, who demanded reinstatement due to (what was now disclosed as) a mental disability.  When not reinstated, he sued under the FEHA arguing that Target had not entered into an interactive process to identify, or offered, reasonable accommodations for his bipolar disorder.

Target moved for summary judgment, asking the court to throw out the case because it was not aware of the employee’s bipolar disorder during employment.  The employee argued that Target should have suspected a mental disability and explored it, and potential reasonable accommodation, before firing him.  The court agreed with Target, finding that “the undisputed facts showed plaintiff never disclosed that he suffered from a mental disability or that he sought accommodation.”

The appellate court agreed, holding that employers need not be “clairvoyant” and that – where an employer is not told that an employee has a disability – it will be charged with knowing an employee has a disability only when disability is “the only reasonable interpretation” of events rather that “a reasonable interpretation” or even “the more or most reasonable interpretation.”  Significantly, the court also held that management's (ill-advised) comments that the employee should get examined or go to a hospital were “untrained and “personal” comments by a co-worker that did not mean Target had recognized the existence of a mental disability.  In the end, the court held that disability was not the only reasonable interpretation, as the behavior “could also be reasonably interpreted” as the side effect of other issues such as ingesting illegal substances or sleep deprivation.

This case is important law and instructive for employers.  It establishes that employers are not required to enter into an interactive process just because a physical or mental disability could be the cause of an employee’s performance issues.  It also affirms that employers will not be held to the same standard as physicians and other trained mental health professionals.  But it also highlights that management, particularly human resources personnel, should avoid unnecessary comments referring to potential physical or mental health issues unless there is good reason for it.

Husband v. Target Corporation can be viewed here.