California Disability Discrimination Law: Employees Must Prove Ability to Perform Job's Essential Duties

August 27, 2007

In a close decision, the California Supreme Court ruled that, just as under the Americans with Disabilities Act, plaintiffs proceeding under the California Fair Employment and Housing Act must prove that they are able to perform the essential functions of the job in order to prevail on a disability discrimination claim. Green v. California, No. S137770 (Cal. Aug. 23, 2007). The Supreme Court found that the employer was unfairly prejudiced at trial because the jury was not instructed that it is the plaintiff's burden to prove that he can perform the essential functions of the job. The Court ordered a new trial with proper instructions.

The plaintiff worked for the State of California as a stationary engineer at a correctional facility beginning in 1987. In 1990, he was diagnosed with hepatitis C. From 1990 until 1997, the plaintiff did not have any work restrictions because of the illness, nor did he lose any time from work. In 1997, the plaintiff's physician began treating him with the drug interferon. The treatment caused the plaintiff to feel fatigued, have trouble sleeping, and to suffer headaches and body aches. The plaintiff's physician requested, and the plaintiff received, a light duty assignment for several months to deal with effects of the treatment. In all other respects, the plaintiff continued to perform his duties.

In June 1999, the plaintiff injured his back while lifting a garbage disposal and was placed on light duty. In November 1999, due to the plaintiff's continuing medical restrictions and the employer's policy limiting the period of a light duty assignment, the employer placed the plaintiff on disability leave. In July 2000, the plaintiff returned to work cleared for full duty.

At the time of the plaintiff's return to work, the employer's return-to-work coordinator, reviewing the plaintiff's medical file, found the prior 1997 light duty-only restriction related to the plaintiff's hepatitis C. Based on this report, the coordinator believed that the plaintiff should not have been cleared to return to full duty. However, before the coordinator could meet with the plaintiff about the prior restriction, the plaintiff went to the coordinator's office to complain of fatigue due to his hepatitis and requested to see a doctor. The coordinator told the plaintiff that, based on work restrictions contained in the 1997 medical report, the plaintiff could not return to work. After discussing his options with the employer, the plaintiff initially decided to take disability retirement.

Thereafter, in October 2000, the employer advised the plaintiff that, unless he could be cleared for full duty, he could not return to his position as a stationary engineer. In November 2000, the plaintiff sought permission to return to work. The employer denied the plaintiff's request, and the plaintiff subsequently sued his employer for disability discrimination under the FEHA.

After a trial, the jury returned a general verdict for the plaintiff. The employer appealed, and the Court of Appeal affirmed the judgment in the plaintiff's favor. Recognizing that the trial court never instructed the jury on the element of qualification or inability to perform, the appellate court held that the FEHA "does not require plaintiff to prove that he is a qualified individual. Rather, the burden is on defendant to establish that plaintiff is incapable of performing his essential duties with reasonable accommodation." The employer appealed.

Reversing the Court of Appeal's judgment, the Supreme Court, looking at the plain meaning of the FEHA, noted that, like the ADA, the FEHA generally prohibits disability discrimination. The court stated that the FEHA "specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties." By its terms, the FEHA "makes it clear that drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, drawing these distinctions is prohibited only if the adverse employment action occurs because of a disability and the disability would not prevent the employee from performing the essential duties of the job, at least not with reasonable accommodation."

The Court observed that the California legislature has "never indicated the intent to compel an employer to employ [] a person who could not perform the essential job duties with or without reasonable accommodation. To do so would defy logic and establish a poor public policy in employment matters." Thus, it held that the employee bears the burden of proving he or she is able to do the job, with or without reasonable accommodation. The Court noted that its conclusion was consistent with the FEHA's legislative history and California's evidentiary rule requiring the party to bear the burden of proof on each fact that is essential to the asserted claim for relief.

This case provides welcome relief to California employers defending disability discrimination claims. The State Supreme Court has clarified that California law is consistent with federal law regarding the burden of proof – employees must prove that they are able to perform the essential functions of the job. Juries must be instructed on this essential element of disability discrimination claims. This case also reminds employers of the importance of proactively evaluating employees' leave and return to work requests and of having a comprehensive strategy for dealing with employees with disabilities.

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