Is Erratic Employee Behavior Notice of a Disability?

When might an employee’s behavior in the workplace put an employer on notice that they have a disability, triggering protections under California’s Fair Employment and Housing Act (FEHA)? A California appeals court recently addressed this question in Husband v. Target Corp., where Target faced FEHA claims by a former employee who was terminated after multiple incidents of erratic behavior in the workplace but had never disclosed that he had a mental disability.

Here’s what happened:

The employee had been working for Target for 20 months without any behavior problems. In 2022, suddenly everything changed.

• June 9: The Employee used profanity and yelled at another employee. Employee received verbal counseling.
• July 7: Employee “suddenly became angry” during a shift, stating that he had been “'hitting himself in his temple and that the fulfillment work load [inventory orders]’ were laughing at him.” The Employee also yelled at other employees. The Employee’s supervisor asked what was wrong, and the Employee requested to go home.
• Employee’s supervisor felt concerned about Employee’s behavior and emailed store management and HR to express concern for Employee’s “mental state.”
• July 8/9: Employee reported for work, seeming “distraught.” Employee told his supervisor he thought he “’killed’ his stepmom by speaking a word” and asked his supervisor and others “if he had killed anyone at the Target store.”
• To “de-escalate” the situation, the supervisor sent Employee home with a recommendation to get a “medical/psych examination.” The supervisor then updated store management and HR via email.
• Later that day, Employee returned to Target with his father, who maintained that Employee was “fine.” At the suggestion of the shift manager on duty, the employee and his father returned the next morning and met with the store manager and HR team lead. Neither Employee nor his father mentioned that Employee had or may have a disability or asked for accommodation.
• July 9: Target made the decision to terminate the employee’s employment based on a violation of Target’s workplace violence policy.
• July 10: The Employee showed up at the store behaving erratically, taking a set of keys and throwing them at another employee.
• On July 18, the Employee submitted a note from a medical provider stating that he was “able to return to work,” but making no mention of a disability or accommodations. Target notified the Employee of the termination decision that same day (9 days after the decision was made).

Employee sued Target for discrimination based on disability (bipolar disorder), failure to engage in the interactive process, and failure to provide reasonable accommodation in violation of FEHA.

FEHA Refresher:

FEHA prohibits employers of 5 or more employees from discriminating against an employee or applicant because of a physical or mental disability. Employers must also engage in an interactive process and provide reasonable accommodations for an employee or applicant with a physical or mental disability.

The Court’s Decision:

The Court found in Target’s favor because Target did not know the employee was disabled. The Court relied on an established standard that an employer “‘knows” an employee has a disability when the employee or third party notifies the employer, or by observation that leaves no reasonable interpretation other than disability.

Here, neither Employee nor a third party notified Target that Employee had a disability. Target’s observation of the employee’s conduct was the only information Target received. The court concluded that, because there were “multiple potential reasons for [Employee’s] behavior,” such as illegal drugs or sleep deprivation, disability was not the only reasonable interpretation of Employee’s behavior. Therefore, it could not be established that Target had “knowledge” of the disability, and Employee could not pursue his claims.

• The fact that the employee’s supervisor was concerned about the employee’s health did not change the outcome. As the court noted, “subjective, non-expert opinion” that an employee might be suffering from an unknown medical issue, while relevant, does not mean that ‘the only reasonable interpretation’ of plaintiff’s conduct was that he has a mental disability.”

Employer Takeaway:

The court’s holding reinforces that an employer’s observation of unusual behavior and concern for an employee’s health may not always be enough on its own to establish the employer’s “knowledge” of an employee’s disability. However, these situations are highly fact-specific.  Employers should make sure to fully evaluate each set of circumstances before making employment decisions.

Questions? CEA is here to help! CEA members may call us at 800.399.5331 or email us at CEAinfo@employers.org.