California Court of Appeal Upholds Requirement of Fitness for Duty Exam

On September 2, 2014, a California appellate court upheld an order requiring a college math professor to undergo a “fitness for duty examination” (“FFD”) based on behavior that his colleagues considered erratic and threatening in nature.  The court also rebuffed the efforts of the professor’s attorneys to interject themselves into the workplace dispute by placing conditions on the FFD.  The court accordingly upheld a jury verdict against the professor on his claim that the University violated the state Fair Employment and Housing Act by requiring him to submit to the examination.  (Kao v. The University of San Francisco, 1st DCA Case No A135750.)

John S. Kao had been an applied mathematics professor at the University of San Francisco for fifteen years when he wrote a 500 page complaint to the school protesting the lack of diversity in the math and computer science department of the school.  Shortly thereafter, Kao allegedly screamed and yelled at one colleague, who said he was fearful of Kao because of previous alleged comments to the effect that Kao was a judo champion and used a wooden mannequin for punching practice.  Another colleague described Kao as engaging in very upsetting and scary behavior during which Kao was shaking with anger and screaming at her at a faculty meeting.  Yet another colleague reported that Kao hit him forcefully on the shoulder after changing direction and bumping into him in a campus hallway.  The administration received other reports that Kao clenched his fists and glared at people, became rigid with anger when asked about his mother, and started laughing in a wild and cackling manner in response to routine workplace comments.

Upon receipt of these complaints, the University commenced an investigation headed by a clinical and forensic psychologist who assessed Kao’s behavior and provided a recommended course of action.  The University consulted a forensic psychiatrist, who advised the University to take affirmative action to evaluate Kao to determine whether Kao was fit for duty and to specify any functional limitations that he had that precluded Kao from continuing to perform his job duties.  The FFD was to include a complete history and background, mental status examination, psychological tests, diagnostic assessments, and an analysis of findings.  Ultimately, however, Kao refused to attend the examination, over his attorney’s objections to it being conducted without a more detailed factual account of the allegations being provided.  The Human Resources Director ultimately told Kao that he would be terminated if Kao did not submit to an FFD by a certain date, and the University terminated Kao for failing to do so.

Following a trial, the court held that the University reasonably required Kao to submit to a FFD exam under the circumstances.  Multiple people reported multiple incidents of threatening behavior on Kao’s part, and the ultimate decision to require Kao to undergo an FFD was based on expert advice and testimony that an FFD was appropriate under the circumstances.

In response to Kao’s claim that the University did not initiate an “interactive process” under disability discrimination law, the court held such a requirement was not necessary because Kao never acknowledged having a disability or sought any accommodation for one.  The court concluded that because FFDs may be implemented if they are job-related and tailored to assess the employee’s ability to carry out the essential functions of the job, or to determine whether the employee poses a danger to other employees due to a disability, sufficient business reasons existed for the FFD and it was entirely lawful in this case.

The case is noteworthy for the court’s refusal to require the school to accede to the plaintiff’s attorney’s demands regarding the requirement of the FFD.  The court summarized the attorney’s demands, but ultimately dismissed them because they were inconsistent with the school’s duties to provide a safe workplace and investigate whether one of its employees posed a harm or threat to others.  This is good news for employers who are confronted with such tactics by employees’ attorneys, who sometimes attempt to interject themselves into the employment relationship in order to make it more difficult to discipline their clients or to attempt build a better case.

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