Kao v. The University of San Francisco, 229 Cal. App. 4th 437 (2014)

Dr. John S. Kao was a tenured professor at USF who submitted a 485-page complaint (plus a 41-page addendum) to the university alleging race-based discrimination and harassment at the school. Kao was not satisfied with the university’s two-page response, which he said did not offer any remedies for the problems he perceived with the way the school recruited new faculty members. Soon, other professors became “terrified” of Kao’s behavior, which included sudden bouts of yelling and screaming, uncontrollable rage and references to his judo expertise. Kao hit one of his colleagues “forcefully on the shoulder,” charged at another in a hallway and began responding to various people at the university with a “wild cackling laugh.” In response, the university conducted an internal investigation and asked Kao to submit to a fitness-for-duty examination (“FFD”) to be conducted by an independent physician and to submit his medical records to the physician. When Kao refused, the university terminated him. Kao sued the university for, among other things, disability discrimination, invasion of privacy and defamation. The trial court granted a non-suit against Kao on the defamation claim, and a jury ruled against him on the remaining claims. The Court of Appeal affirmed, holding that the university was not required to engage in the interactive process before referring Kao for an FFD because it was Kao’s burden (not the employer’s) to initiate the interactive process and that there was a business necessity for an FFD in this case. The Court found “untenable” Kao’s claim that USF had violated the Unruh Civil Rights Act given the existence of substantial evidence of a legitimate concern that Kao was dangerous. The Court also affirmed dismissal of the claim that the university had violated the Confidentiality of Medical Information Act by requiring Kao to submit his medical records to the independent physician as well as the defamation claim because communications about Kao to the independent physician were qualifiedly privileged. Finally, the Court affirmed denial of Kao’s motion in limine to exclude evidence that he had failed to mitigate his damages by not seeking work outside a university setting. See also EEOC v. Peabody W. Coal Co., 768 F.3d 962 (9th Cir. 2014) (mining leases that require employer to give preference to “Navajo Indians” do not violate Title VII’s prohibition against national origin discrimination).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.