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Kao v. University of San Francisco: Pre-Evaluation Investigation Procedure

An employee medical or psychological evaluation must be job-related and consistent with business necessity under the ADA and FEHA. Employers may meet the business necessity requirement when it has a reasonable belief based on objective evidence that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.   What exactly constitutes sufficient objective evidence depends on the facts of the case, but documenting all disconcerting behavior, co-worker complaints, and investigative steps is critical for an employer defending its decision to require a fitness for duty evaluation as consistent with business necessity.

In Kao v. University of San Francisco, a tenured mathematics professor sued his former employer alleging violations of ADA and California Fair Employment and Housing Act in connection with events surrounding his termination. 229 Cal. App.4th 437, 451-52 (2014). After exhibiting a pattern of aggressive and disturbing behavior with students and co-workers, the University ordered Professor John Kao to undergo a psychological evaluation with a University-chosen doctor. When he refused, the University terminated him.

A jury found in favor of the University and Professor Kao appealed arguing that the University could not lawfully require the psychological examination. The Court of Appeals disagreed – finding that the psychological examination was job-related and consistent with business necessity – and affirmed the judgment for the University.

Prior to requiring the psychological fitness for duty evaluation, the University opened an extensive investigation into the reported behavior, which was led by the University’s Assistant Vice President. Specifically, the University:

  • Interviewed each of the faculty members who had disturbing experiences Professor Kao;
  • Consulted with a forensic psychologist to obtain information on markers for violence or things to look for that might suggested escalation of hostility and how best for the University to respond. The University also consulted with the psychologist about predicting violence, risk factors such as psychopathy and narcissism and risk prediction schemes that might be related to issues with Professor Kao;
  • Conducted multiple meetings with faculty members in the mathematics department and the University Dean to determine whether there was consistent concern with a number of people; and
  • Met with Professor Kao and his attorney to allow him to provide any additional information for the University to consider.

The University thoroughly documented each step of its investigation.

The law does not require the investigation procedure undertaken by the University and it is perhaps one of the most detailed pre-evaluation investigation procedures documented in the case law. However, by taking these steps, the University was able to easily demonstrate to the jury, and later to the appellate court, that the fitness for duty evaluation was consistent with business necessity (i.e. was necessary to determine whether Professor Kao “posed a danger to others in the workplace). Moreover, the Northern District of California recently gave the University’s lengthy investigation procedure further weight when the Court stated that the process undertaken by USF in Kao is “perhaps the best process as far as affording the employee the most opportunity to interact with the process.” Ellis v. San Francisco State University, Case No. 15-cv-02273, ECF No. 63, Order Denying Cross-Motions for Partial Summary Judgment (N.D. Ca. Aug. 11, 2016).

Employers may show that a fitness for duty evaluation is job-related and consistent with business-necessity in many different ways and it is not at all suggested that an employer must follow the exact same steps as the USF in order to meet these requirements. There will undoubtedly be situations in which such a lengthy investigation is not the best or safest option for an employer that is concerned about an employee’s immediate threat to himself/herself or others. It is important for an employer to recognize that safety in the workplace is and should be a primary concern and courts most frequently defer to an employer’s judgment on what is necessary to maintain a safe workplace. Nevertheless, this case provides guidance as to what type of evidence courts (both state and federal) have found sufficient to meet the business necessity and job relatedness requirements of a fitness for duty evaluation.[/vc_column_text][/vc_column][/vc_row]

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