Court of Appeal
Decision Shifts Employer's Burden in Disability Cases
Recently,
California Court of Appeals decision imposed a greater burden on employers
in disability discrimination cases. Contrary to federal law and previous
state court decisions, the court held that under the state Fair Employment
and Housing Act (FEHA) the employer - - not the employee - - has the burden
to prove that the employee was not qualified to do the job. Previous California decisions
and federal Americans with Disabilities Act (ADA) cases have held that an
employee's basic claim of disability discrimination required the employee
to prove his/her capacity to perform the job.
Once
again, this case demonstrates that California
courts are more likely to give a broad interpretation of disability law
under FEHA in favor of the employee. Employers in need to pay close
attention to their obligations to disabled employees.
Employer Allegedly Failed to Accommodate Employee with Hepatitis C
Dwight
Green, an engineer at a California
state prison for twelve years, brought the case.
In
1990, Green discovered that he had Hepatitis C. The disease may have been
contracted while working on the sewer pipes at the prison. For years, Green
was able to perform his duties without any problems. In 1997, Green was
placed on a drug called Interferon that caused side effects, such as
fatigue, aches and stress. As a result, Green's doctor requested that Green
be placed on light duty for Green for a few months. The prison accommodated
Green's request.
Two
years later, Green suffered a back injury and was put on disability leave.
He also resumed Interferon treatments for his Hepatitis C. When Green was
eventually cleared to return to work, there were still questions about
whether he was returning with job restrictions.
Upon
reviewing various medical and workers' compensation reports, the prison
came to the conclusion that Green was incapable of performing his job
duties. While several options were discussed, Green was not allowed to
return to his engineer position. Eventually, the prison submitted a
disability retirement application on Green's behalf.
Green
sued his employer for disability discrimination and failure to accommodate
under FEHA. The case went to trial and the jury found that in failing to
provide Green with reasonable accommodation for his Hepatitis C, the
correctional facility discriminated against Green in violation of FEHA. The
jury awarded Green $597,000 in economic damages and $2 million in
non-economic damages, which the court reduced to $1.8 million.
The
employer challenged the jury verdict on the ground that there was not
sufficient evidence to support a finding of disability discrimination.
Who Bears the Burden of Proving the Employee is Qualified for the
Job?
On
appeal, the prison challenged the sufficiency of the evidence to support
the verdict. The court was faced with the question of whether the burden of
establishing that Green was incapable of performing the essential functions
of his job was correctly placed on the employer. The California Court of
Appeal held that it was the defendant's burden to prove plaintiff's
incapacity as an affirmative defense and not plaintiff's burden to prove
his capacity to perform as part of his prima facie case. Based on this
conclusion, there was substantial evidence to support the jury's finding of
disability discrimination.
Prior
federal and state court decisions have held that in order to set forth a prima
facie case for disability discrimination, the employee must
demonstrate that: (1) the employee suffers from a disability; (2) the employee
is a qualified individual; and (3) the employee was subject to an adverse
employment action because of he disability. Once
the employee meets this burden, the burden shifts to the employer to
demonstrate a valid reason for taking the action against the employee. If
the employer meets its burden, then the burden shifts back again to the
employee to show that the employer's stated reason is a pretext for
discrimination.
Green changes
the burden. The court of appeal held that the employee is not required to
prove that s/he is a qualified individual. Instead, the burden is on the
employer to prove that the employee was not qualified, i.e., the employer
must "establish that plaintiff is incapable of performing his
essential duties with reasonable accommodation."
Analyzing
FEHA and FEHA's regulations, the court held that
the legislature intended FEHA to be different from the ADA in regard to the burden of proof.
Moreover, the Green decision specifically disapproves of jury instructions
on the issue of burden of proof that were drafted by the California
Judicial Counsel. The decision also disapproves of a previous court of
appeal decision which placed the burden on the plaintiff to prove that s/he
was qualified as part of his prima facie case.
Tips for Employers
Unfortunately,
California law again deviates from federal
ADA
precedent. The trend among California
courts is seemingly to expand liability for disability discrimination and
interpret FEHA in a much broader manner than the ADA. While one would assume that being a
qualified individual with a disability would be a basic requirement before
someone could sue for disability discrimination, this court has now shifted
that burden to the employer to negate the employee's ability to perform the
essential functions of the job.
Employers Should
- Always take any
claim of disability discrimination seriously.
- Never ignore
reasonable accommodation requests, even if not in writing.
- Engage in the
required interactive reasonable accommodation process with the employee
and seek input from the employee. The individual may suggest a
reasonable accommodation based upon her own life or work experience.
However, when the appropriate accommodation is not readily apparent,
you must make a reasonable effort to identify one. The best way to do
this is to consult informally with the applicant or employee about
potential accommodations that would enable the individual to
participate in the application process or perform the essential
functions of the job.
- Train managers and
supervisors about California's
disability law.
- Make certain that
all policies conform to state law and not the federal ADA.
- Consult competent
labor and employment counsel with any questions.
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