If so, would the employee be protected?
How pervasive is anxiety at work?
What situations cause anxiety? If your boss told you that you were incompetent, how would you feel? What if he or she said you are not productive enough, you are not leading enough, or not a team player? What if your boss told you these things repeatedly, made derogatory comments, laughed at you, and embarrassed you in front of your coworkers? How secure would you feel in your job? How anxious would you be? How long would it take to find a new job? How will you (and your family) survive if you are without work for a long time?
Is anxiety limited to a subordinate employee? A boss may be concerned about the welfare of an employee who has anxiety and about the business. If the employee has anxiety will he or she miss a lot of work? Will the employee get their work done on time? Will a delay in project completion make the boss look incompetent to their superiors and put their job at risk?
The Subject Case: Higgins-Williams v Sutter
In the recent decision of Michaelin Higgins-Williams v Sutter Medical Foundation (“Higgins”) the California Court of Appeal faced the issue of whether the Michaelin’s adjustment disorder with anxiety constituted a disability under California’s Fair Employment and Housing Act (“FEHA”). If it did, then that law would allow for a reasonable accommodation, including time away from work, and prohibit disability discrimination against Michaelin (plaintiff).
After nearly three years of doing patient intake work, in 2010, Michaelin’s doctor diagnosed her with adjustment disorder with anxiety. Michaelin told her doctor and he reported that she had “stress when dealing with her Human Resources and her manager.” Michaelin took about a five-week stress-related leave of absence from Sutter Medical Foundation (“Sutter”) under the California Family Rights Act and the federal Family and Medical Leave Act. Due to prior absences, this leave exhausted her 12 weeks available under both laws.
When Michaelin returned to work from her leave, she received her only negative performance evaluation from her supervisor, which was approved by her manager. Michaelin alleged that about five weeks after returning to work, on September 8, 2010, Sutter’s regional manager began singling her out for negative treatment, was curt and abrupt with Michaelin, and gave her a disproportionate share of work. Michaelin claims that her supervisor inaccurately accused her of being irresponsible with her identification badge and that the next day, the regional manager grabbed her arm and yelled at her. Michaelin had a panic attack, left work, and remained off work.
Michaelin asked for a transfer to another department and to extend her leave of absence. Sutter granted her leave extension. Over several months of being off work, Michaelin, her doctor, and Sutter discussed potential arrangements for her to return to work with conditions. In that process, Sutter asked for information that was not provided and ultimately Sutter terminated Michaelin’s employment on February 1, 2011. Michaelin sued for disability discrimination and wrongful termination.
California’s Anti-Discrimination Law – Fair Employment and Housing Act
Under California’s Fair Employment and Housing Act (“FEHA”), discriminating against a person who is disabled is illegal. Therefore, a threshold question in analyzing this case is whether Michaelin was disabled under the law. Pursuant to FEHA, a disability can include an “emotional or mental illness” that “limits a major life activity.” [CA Government Code §12926(j)(1)]. Those activities can include physical, mental, and social activities, or work. [CA Government Code §12926(j)(1)(C)] The term “limits” means that achieving a major life activity is made difficult. [CA Government Code §12926(j)(1)(B)] For Michaelin to succeed with her disability discrimination cause of action (claim), she had to prove that her adjustment disorder with anxiety limited the major life activity of work–that it made work difficult.
The Court’s Analysis
Michaelin’s doctor identified the source of Michaelin’s adjustment disorder with anxiety as “stress when dealing with her Human Resources and her manager.” A prior case, Hobson v. Raychem Corp., stated that “the inability to perform one particular job or to work under a particular supervisor, does not constitute a qualified disability” under FEHA. [emphasis added] The Hobson court borrowed this language from the case of Thompson v. Holy Family Hospital  and the Higgins court did not compare the facts and law in Hobson or Thompson with the facts and law in Higgins, which would have shown significant differences. These differences make Higgins distinguishable from Hobson and Thompson, which makes their application to Higgins suspect. Nonetheless, the court concluded and held that Michaelin did not have a disability (presumably because her limitation regarding the major life activity of work was confined to not being able to work with her manager or supervisor because of the stress related to her supervisor’s and/or manager’s standard oversight of her performance). Therefore she was not protected under FEHA.
Also worth noting is that the Hobson decision was overturned in the subsequent case of Colmenares v. Breamer Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn 6 because under FEHA, the test is not whether a major life activity is “substantially limited” pursuant to the Americans with Disabilities Act (“ADA”) but whether it is simply “limited.” Higgins is a California FEHA case, not a federal ADA case.
Relying on the prior cases that the Higgins court did, makes the result in Higgins questionable.
The Higgins court addressed whether being limited in doing a particular job constitutes “work” as a major life activity. The Higgins decision notes that FEHA states that working is a major life activity even if it involves a particular employment but attempted to distinguish Higgins because “no decision has disapproved or questioned … that an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a mental disability under FEHA.” (Ms. Higgins could perform her job if she did not need to work with her supervisor, manager, and possibly, Human Resources.)
The Higgins court suggests that if a supervisor uses “standard oversight” of their employees, that a subordinate cannot claim that supervisor-caused anxiety constitutes a disability under FEHA. It said that the facts Michaelin provided for non-standard oversight of being singled out for negative treatment and that the supervisor grabbed Michaelin’s arm and yelled at her was not enough non-standard oversight to consider her supervisor’s oversight as non-standard.
What does this mean? The Higgins court does not explain what “standard” oversight is. Is the court saying that if a supervisor uses average (normal) management methods that such oversight is “standard,” and that standard oversight conduct could not induce stress in an employee sufficient to make them disabled? How is such conduct measured?
The court may be trying to define work but it appears to result in the opposite of what the court concluded. Could the court be saying the major life activity of work must be defined as requiring standard oversight to represent a class of jobs or group of jobs? By definition, “standard” would appear to mean the norm and thus a broad range of jobs. The federal ADA, even after its amendment by the ADA Amendment Act (“ADAAA”) has been interpreted as defining work to require a class of jobs or broad range of jobs. Are some California courts, like Higgins, following federal law instead of FEHA by using this definition for work as a major life activity? But if one applies this rationale to Higgins where the court said that overall there was standard oversight, then Michaelin’s inability to perform her job would be a job that represents a broad range of jobs. Consequently, if she was limited in doing her job, she was limited in doing a broad range of jobs and therefore disabled under the law. But the court came to the opposite conclusion.
Given the lack of definition of “standard oversight” in Higgins, this aspect of the case is confusing for employees or employers.
In 2013, a federal District Court in Burch v CA DMV stated that not being able to work in a class of jobs or broad range of jobs was not necessary. In Burch, the plaintiff’s doctor stated that plaintiff could not work under a single person and plaintiff was subsequently constructively discharged when the DMV would not accommodate his disability. The Burch court specifically stated that not being able to work under a single person constituted a disability because it met the requirements of FEHA for the major life activity of work and that not being able to work in a class of jobs was no longer required. 
Here is another thought about how this issue could be viewed. In Higgins, Michaelin could not work with her supervisor, manager (and possibly Human Resources). But wasn’t that partly because of the characteristics and behavior of her supervisor and manager? The manager approved her negative performance evaluation, gave her negative treatment, was curt and abrupt, gave her a disproportionate amount of work, grabbed her arm and yelled at her. Michaelin’s supervisor gave her a negative performance evaluation and inaccurately alleged she was irresponsible with her badge. This behavior is not unique among many supervisors or managers. Wouldn’t the jobs under these types of supervisors or managers constitute a group of jobs or a class of jobs that plaintiff could not work for? Doesn’t this satisfy the ADA and FEHA? Does a manager’s conduct over a subordinate dictate the nature of a job as much as the actual duties that must be performed, if the nature of the disability is a mental one instead of a physical one?
So will an employee with anxiety caused by a manager be disabled under FEHA and therefore be protected against disability discrimination? It seems to depend on the court you get. If you are an employee, you want a Burch court. If you are an employer, you want a Higgins court.
Should the parties consider the following? Under FEHA, an employee can be disabled if it is difficult for them to perform any major life activity, including those other than work. If the employee’s anxiety impairs other major life activities, wouldn’t they get over the hurdle posed in Higgins of proving they are disabled to do the major life activity of work when they cannot work for a particular boss?
The Higgins decision does little to relieve my anxiety over whether an employee with anxiety caused by a manager will be disabled under FEHA. Will the legislature clarify this issue? Don’t count on it, it already attempted to clarify the law in 2000.
 CA Court of Appeals, 3d Appellate District; Superior Court No. 34-2011-00102428-CU-WT-GDS, decision filed on May 26, 2015.
 Under FEHA, being discriminated against because an employee is regarded as being disabled is also illegal.
 Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 628. The aspect of inability to perform one particular job as not being a disability has been questioned by a 9th Circuit federal court (EEOC v. United Parcel Service, Inc. (9th Cir. 2005) 424 F.3d 1060, but the EEOC case dealt with a particular type of job – driving large trucks with monocular vision, not just a single job. The Higgins court distinguished this case from the Higgins case because it involved a group or type of job rather than a single job as in Higgins.
 Thompson v. Holy Family Hospital (9th Cir. 1997) 121F3d, 614, 628.
 The Hobson court stated that plaintiff was not disabled based on plaintiff’s testimony and it never made a decision concerning whether Ms. Hobson was disabled due to supervisor stress because it said she did not include mental or emotional impairment such as depression as a cause for her ulcerative colitis in her required DFEH complaint. In Thompson, one of the issues was whether the plaintiff could work in one job where she had lifting restrictions, not for one person, and the law involved was the federal ADA, not California’s FEHA.
 Further, under the law of this state, “working” is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments. Government Code §12926.1(c)
 Burch v. California Dept. of Motor Vehicles (United States District Court, E.D. California, 2013), 2013 WL 6844493, CIV. S-13-1283 LKK
 “In addition to the California Supreme Court’s express disapproval of Hobson’s reliance on the “substantial limitation” standard, the California legislature has expressly voided the conclusion Hobson and similar cases drew from that standard, namely, that plaintiff therefore had to show that he was unable to work in “a class of jobs.” In 2000, the legislature enacted an amendment to FEHA which states: ‘under the law of this state, “working” is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments. Cal. Gov. Code § 12926.1(c).’” Burch v. CA DMV, 2013 WL 6844493, p.7,8.
Jeff Park is a Partner at Habbu & Park Inc.
This Newsletter is intended to only provide general information concerning the law and possible interpretations of the law. Nothing in this website should be construed as providing legal advice to anyone or any entity for any particular situation or purpose and no arrangement for such or for representation has been made by viewing this Newsletter.