Q: Recently, a Florida doctor made headlines when a video went viral of her boozy tantrum attacking her Uber driver on a night out. The doctor has profusely apologized for her conduct and blames a broken heart for the incident. Unfortunately, her medical training provided no cure for this type of cardiac injury – other than apparently a self prescription for ample amounts of vodka. Should her career still be on life support even though her conduct occurred outside of the workplace?
A: Probably, yes. Simply because an employee’s conduct is off-duty does not mean that it is protected. Formerly, there was an argument that Labor Code sections 96(k) and 98.6 created a statutory authority for an employee to file a claim if they were terminated for lawful off-duty conduct. However, the case of Grinzi v. San Diego Hospice Corp (2004) 120 Cal.App.4th 72 held that the Labor Code does not establish a public policy against terminations not otherwise protected by the Labor Code.
That being said, there are still concerns. Primarily, an employer must make assurances that it treat all employees the same. If the employer treats one group (e.g. woman, heterosexuals, etc.) different there could be a violation of Title VII or the FEHA. An employer also cannot terminate an employee based on conduct that is otherwise protected by the Labor Code such as political speech or expressions of sexual orientation. Here, it would seem a stretch to suggest that her actions were in anyway protected. Currently, a broken heart is still not recognized as an ADA disability.