When an employee hasn’t disclosed his disability to his employer, under what circumstances will the employer be charged with knowledge of that disability (and hence potentially liable under FEHA)?
California’s Fair Employment and Housing Act (FEHA) defines and prohibits several unlawful employment practices, including (i) discriminating against a person because of a “physical” or “mental disability”; (ii) failing to make reasonable accommodation” for a “known physical or mental disability”; and (iii) “failing to engage in a timely, good faith, interactive process … to determine effective reasonable accommodations.”
An employer’s knowledge of an employee’s disability is a prerequisite to FEHA liability under any of those theories: An employer can’t discriminate against an employee on the basis of a disability if it doesn’t know of that disability, and an employer cannot fail to reasonably accommodate (or fail to engage in an interactive process to reach such an accommodation) if it does not know of a disability necessitating accommodation (§ 12940(m)(1) & (n), requiring a “known” disability).
For purposes of a FEHA claim for discrimination, an employer’s knowledge of a disability will be inferred “only … when the fact of disability is the only reasonable interpretation of the known facts.” For purposes of FEHA claims for failure to make a reasonable accommodation or failure to engage in the interactive process, an employer’s knowledge of a disability will be inferred only if the disability is “obvious” or its “observed symptoms” “are so obviously manifestations of an underlying disability” that the existence of a disability “always follows” from the observed symptoms. Applying these standards, the Court of Appeals was asked if an employer can be charged with knowledge that an employee suffers from an undisclosed diagnosis of bipolar disorder because, on two occasions, the employee was unusually aggressive and made irrational comments that caused his supervisor to be concerned for his mental state.
Background
In October 2020, Target hired the plaintiff to work as a “fulfillment expert” in its Burbank store. Although the “new hire” materials the plaintiff received explained that Target would attempt to accommodate any “known physical or mental limitation(s)” of its employees, the plaintiff didn’t (at the time of orientation or at any time thereafter) inform any Target “official” that he’d been diagnosed with bipolar I disorder.
For the first 20 months of his employment, plaintiff had no negative incidents at Target. That changed in June and July of 2022. But on June 9, 2022, the plaintiff entered the store where he worked while off duty to buy merchandise as a customer. While there, he became visibly upset with a Target employee. The employee said the plaintiff also used profanity, but the plaintiff denied the use of such words. The plaintiff was soon thereafter verbally counseled by a supervisor about the incident, and a written counseling memo for that incident was subsequently issued on July 11, 2022.
The plaintiff’s abnormal and strange behavior continued with several incidents at Target. As a result, on July 9, 2022, the store director, the HR lead, and Target’s districtwide human resources business partner made the decision to terminate the plaintiff for violating Target’s workplace violence policy. At the time that decision was made, the plaintiff hadn’t told anyone at Target that he suffered from bipolar disorder and hadn’t requested any accommodations for that mental disability.
The plaintiff sued Target for (1) discrimination on the basis of mental disability under FEHA, (2) failure to provide reasonable accommodation for his mental disability under FEHA, and (3) failure to engage in the interactive process under FEHA. He sought compensatory as well as punitive damages. Target moved for summary judgment on the plaintiff’s FEHA claims as well as summary adjudication of his prayer for punitive damages. Following the entry of judgment for Target, the plaintiff filed this appeal.
FEHA Standards
The plaintiff argued that the trial court erred in (1) granting summary judgment on his three FEHA claims, (2) granting summary adjudication of his prayer for punitive damages, and (3) declining to continue the summary judgment hearing to allow for additional discovery.
“Mental disability” for purposes of FEHA includes “any mental or psychological disorder or condition,” which in turn includes “mental illness” and specifically, bipolar disorder. It doesn’t include “the unlawful use of controlled substances or other drugs.”
Discrimination Because of Disability
Judge Brian M. Hoffstadt of the Second District Court of Appeal explained that because FEHA prohibits discrimination only when motivated by a “discriminatory intent,” California employs a burden-shifting mechanism to determine the existence of that intent. The plaintiff-employee must first establish a prima facie case of discrimination by establishing that :
- He suffered from a disability;
- He was otherwise qualified to do his job, with or without reasonable accommodation; and
- He was subjected to adverse employment action because of the disability.
If the plaintiff-employee makes out a prima facie case, the burden shifts to the employer to set forth a legitimate and nondiscriminatory reason for the adverse employment action at issue. If the employer sets forth such a reason, the burden shifts back to the employee to prove intentional discrimination.
Of course, the only way a the plaintiff-employee can establish that he was subject to an adverse employment action because of a disability is if the plaintiff-employee shows that the employer had knowledge of that disability at the time the adverse employment action was taken. For this purpose, an employer knows an employee has a disability when (1) “‘the employee tells the employer about his condition’” or (2) when the employer otherwise becomes aware of the condition, such as through a third party disclosing the condition or by observation. Where, as here, neither the employee nor a third party disclosed the employee’s mental disability, “knowledge” of that disability “will only be imputed to the employer” through its observation of the “underlying facts” “when the fact of disability is the only reasonable interpretation of the known facts.”
Failure to Reasonably Accommodate a Disability and to Engage in a Good Faith Interactive Process to Determine Reasonable Accommodations
Judge Hoffstadt noted that FEHA places an “affirmative duty” upon employers to “‘make [a] reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer’s operation.’” FEHA also charges employers with a related, precursor duty to “engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations … in response to a request for reasonable accommodation by an employee … with a known … disability.”
These duties only arise when the employee’s disability is “known” to the employer, the judge wrote. In most cases, the employee bears the burden of giving the employer notice of the disability, and that notice is what triggers the employer’s burden to take positive steps to accommodate the employee’s limitations and to provide reasonable accommodations. Judge Hoffstadt said that notice from an employee isn’t the only way to trigger the duties to reasonably accommodate or to engage in the interactive process, as those duties can also be triggered if the employer learns of the employee’s disability from a third party or by its own observation. Moreover, an employer will be charged with knowledge of a disability by observation only if the observed symptoms are so obviously manifestations of an underlying disability that the existence of a disability always follows from the observed symptoms.
Court Analysis
Judge Hoffstadt said that it was undisputed that the plaintiff never informed Target that he has bipolar disorder. In addition, the record also didn’t raise a triable issue of any material fact as to whether knowledge of the plaintiff’s bipolar disorder should be imputed to Target based on what it observed. While emotional and irrational conduct is a symptom of bipolar disorder and while one reasonable interpretation of that behavior is that the plaintiff suffered from a mental disability, the judge wrote that isn’t “the only reasonable interpretation” of the plaintiff’s behavior.
Judge Hoffstadt wrote that contrary to what the plaintiff asserted, the supervisor’s conclusion that the plaintiff “needed help” and that “a hospital would be better than the police” for the plaintiff to obtain that help—and his decision to send the plaintiff home after the July 8, 2022 incident with a recommendation that he “get examined by a doctor/psych professional”—didn’t alter the Court’s conclusion. To give controlling weight to one co-worker’s untrained, subjective “personal opinion,” as the plaintiff suggested, would make the standard for imputing knowledge—and hence the employer’s liability under FEHA—turn on the vagaries of the nature of the workplace, the co-worker’s knowledge (or lack of knowledge) of mental illnesses.
Judge Hoffstadt wrote that precedent reinforces the Court’s application of this standard. An employer has been charged with knowledge of an employee’s mental disability when it has received a note from medical professionals indicating treatment for such a disability or symptoms that are consistent only with a disability. But knowledge of a disability hasn’t been imputed based on an employer’s observation of “erratic” behavior or even when the employer has been told by the employee’s relative that the employee was “mentally falling apart” and had “lost it.” Judged against this case law applying the governing standard, the plaintiff’s two incidents of erratic and irrational behavior were insufficient to impart knowledge of a mental disability to Target.
The Court concluded that summary judgment was warranted on all three of the plaintiff’s FEHA claims. The judgment was affirmed. Husband v. Target Corp. (Cal. Ct. App., 2nd Dist. May 21, 2026).
Takeaway
California employers can’t be found to have discriminated against an employee on the basis of a disability if they don’t know of that disability.
For questions regarding this topic, contact us at Eanet, PC.