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DISABILITY DISCRIMINATION PLAINTIFF MUST PROVE ABILITY TO PERFORM ESSENTIAL JOB FUNCTIONS

The California Supreme Court recently held that an employee who sues for disability discrimination under the California Fair Employment and Housing Act (“FEHA”)[1] bears the burden of proof that he or she is able to perform the essential functions of the job. Green v. State of California, 2007 Cal. LEXIS 8910 (August 23, 2007).

The Law

The federal Americans with Disabilities Act (“ADA”) expressly requires that the plaintiff in a disability discrimination case prove that he or she is a “qualified individual” who can perform all essential job duties. See 42 U.S.C. §12112(a). In contrast, the statutory language of California’s FEHA is unclear as to whether the employer or the employee has the burden of proof on this issue. As a result, some courts have required that the employee prove he or she is “qualified” as an essential element of the case,[2] while others have held that the employer must establish the employee is “not qualified” as an affirmative defense. This might seem like a minor technical issue, but it can have a significant impact on the outcome of FEHA disability cases; the party bearing the burden of proving whether, or to what extent, an employee is qualified to perform essential job functions is always at a disadvantage.

Green v. State of California

Plaintiff Dwight Green worked for the California Department of Corrections (“CDC”) as a stationary engineer. 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 a new treatment regimen, which resulted in fatigue, difficulty sleeping, and headaches and body aches. The plaintiff's physician requested, and the plaintiff received, a light duty assignment. After several months, the plaintiff returned to full duty and otherwise performed the essential functions of his job.

In June 1999, the plaintiff injured his back on the job. In November 1999, due to the plaintiff's continuing medical restrictions, the CDC placed the plaintiff on disability leave. In July 2000, the plaintiff returned to work cleared for full duty.

When the plaintiff returned to work, the CDC undertook a new review of his file, and found the prior 1997 light duty-only restriction related to the plaintiff's hepatitis C. Based on this report, the CDC determined that the plaintiff should not have been cleared to return to full duty. Ultimately, the CDC told the plaintiff that, based on work restrictions contained in the 1997 medical report, he could not return to work. With this understanding, the plaintiff initially decided to take disability retirement.

In November 2000, the plaintiff changed his mind and sought permission to return to work. The CDC denied the request, and the plaintiff filed a lawsuit alleging disability discrimination under the FEHA. The plaintiff prevailed at trial, and the jury awarded almost $600,000 in economic damages and $2 million in non-economic damages. On appeal, the court of appeal affirmed the judgment in Green's favor. In so doing, the court also upheld the trial court’s legal ruling that, under FEHA, the employer bears the burden of proving that its employee is unable to perform the essential duties of the job, with or without reasonable accommodation.

The California Supreme Court disagreed and held that the burden of proof is on the plaintiff to show that he or she is a qualified individual under FEHA (i.e., that he or she can perform the "essential" functions of the job with or without "reasonable accommodation"). In reaching its decision, the Supreme Court noted that California’s FEHA is modeled after the ADA, and that the ADA places the initial burden on the employee to prove that he or she is a “qualified individual with a disability.” After reviewing the language of the FEHA, the Supreme Court concluded that a similar rule was required by state law. Specifically, the court determined that the FEHA “makes it clear that drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, drafting 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. Therefore, in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of providing he or she was able to do the job, with or without reasonable accommodation.”

Practical Tips

Although Green is welcome news for California employers (and defense lawyers), important issues still remain unsettled. For example, the Supreme Court does not clarify the standard for a "disability" under FEHA – which has been interpreted as being much less stringent than the standard under the ADA. Similarly, the court avoids discussion of the standard for distinguishing "essential" job functions from marginal ones – a challenge for employers in evaluating all employee disability issues. Nor does the court help employers walk the line between “reasonable” and “unreasonable” accommodations.

For all of these reasons, employers should continue to tread carefully in this area, and should seek assistance from experienced human resources professionals in handling all disability issues. A prudent HR policy should include:

• Written job descriptions that accurately reflect essential job functions;

• Exit procedures to review termination decisions for compliance with disability laws; and

• Written procedures for handling requests for accommodation

• A legal process for obtaining and reviewing medical information

• A consistent approach to evaluating potential accommodations, and monitoring accommodations that are implemented.

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[1] Cal. Gov. Code §§ 12900 et seq.

[2] See, e.g., Brundage v. Hahn, 57 Cal.App.4th 228 (1997).