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Home » Blog » Can Your Employer Terminate You for Performance Issues Caused by Your Disability?

Can Your Employer Terminate You for Performance Issues Caused by Your Disability?

Posted on April 26, 2021 | By Omid Nosrati | Employment Law,Wage & Hour Laws,Wrongful Termination

Being terminated for performance issues caused by a disability is not only unfair, it is probably illegal as well. In the federal appellate case of Humphrey v. Memorial Hospitals Association, the court said that for purposes of the Americans with Disabilities Act (with a few exceptions, such as alcoholism or illegal drug use), conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.  For example, if an employee has attendance problems due to obsessive compulsive disorder (the disability), then it could be wrongful for the employer to terminate the employee for the attendance problem. That is what occurred in the Humphrey case.

In Humphrey, the plaintiff was a Medical transcriptionist with obsessive compulsive disorder (OCD). Her lawsuit claimed that she was terminated in violation of the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).

The plaintiff in Humphrey was very good at her job as a medical transcriptionist. She received praise for her skills and received overall positive performance reviews. However, the plaintiff suffered from obsessive-compulsive disorder which made the relatively simple tasks of bathing and brushing one’s hair into an hours long ordeal in the morning.  For example, if she got out of the shower and didn’t like the way her hair would look, she would take another shower, thus prolonging her morning tasks in order to get ready for work.  Her OCD caused her to suffer from tardiness.  She eventually was written up for her tardiness.

The plaintiff presented a doctor’s note to her employer requesting reasonable accommodations. When the accommodation proved to be ineffective, the plaintiff asked for a different accommodation: to be allowed to work from home.  That would have resolved the issue of being late to work due to her OCD and her morning tasks. The evidence in this case showed that the employer allowed other employees to work from home but because the plaintiff had been written up for her tardiness, her request was denied, and she was ultimately fired.

The court concluded that the employer violated its duty to provide reasonable accommodations by refusing to allow the plaintiff to try working from home. The court said that when a performance problem is caused by a disability, the employer has a duty to reasonably accommodate the disability and will face liability for failure to do so.

Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the Fair Employment and Housing Act to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. Importantly, the employer admitted that it would not have created an undue hardship to allow the plaintiff to try working from home.


An unlawful discharge claim requires a showing that the employer terminated the employee because of her disability. In this case, the employer’s reason for Ms. Humphrey’s termination was absenteeism and tardiness. Performance issues resulting from a disability are considered to be part of the disability.

The link between the disability and termination is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to discharge for performance inadequacies resulting from that disability. “In sum, a jury could reasonably find the requisite causal link between a disability of OCD and Humphrey’s absenteeism and conclude that [the employer] fired Humphrey because of her disability.”

Being terminated for performance issues caused by a disability can be a wrongful termination in California. If you are an employee with a disability and believe you’ve been wrongfully terminated due to your disability, it’s important to consult with an employment lawyer to explore your potential rights.

The employment lawyers at Nosratilaw, A Professional Law Corporation have extensive experience dealing with wrongful termination cases.  You can call 310-553-5630 for a free case evaluation now.

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About the Author
Omid Nosrati

Mr. Nosrati been selected as one of the Top 100 Labor and Employment lawyers in the State of California for 2016, 2017, and 2018 by The American Society of Legal Advocates (ASLA). He has a “Superb” (10 out of 10) rating on Avvo and a 4.9 out of 5.0 Peer Rating from other lawyers on Martindale Hubbell. Omid Nosrati is also a member of the respected California Employment Lawyers Association, Los Angeles County Bar Association, and Santa Monica Bar Association. He is a firm believer in education, loves to read about technology trends in the legal field and leverages his firm’s technological strengths to benefit each of his firm’s clients.