California Civil Jury Instructions (CACI)

2541. Disability Discrimination - Reasonable Accommodation—Essential Factual Elements (Gov. Code, 12940(m))

[Name of plaintiff] claims that [name of defendant] failed to reasonably accommodate [his/her] [physical/mental] [condition/ disease/disorder/[describe health condition]]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was [an employer/[other covered entity]];

2. That [name of plaintiff] [was an employee of [name of defendant]/applied to [name of defendant] for a job/[describe other covered relationship to defendant]];

3. That [name of plaintiff] had a [physical/mental] [condition/ disease/disorder/[describe health condition]] that limited [insert major life activity];

4. That [name of defendant] knew of [name of plaintiff]'s [physical/mental] [condition/disease/disorder/[describe health condition]] that limited [insert major life activity];

5. That [name of defendant] failed to provide reasonable accommodation for [name of plaintiff]'s [physical/mental] [condition/disease/disorder/[describe health condition]];

6. That [name of plaintiff] was harmed; and

7. That [name of defendant]'s failure to provide reasonable accommodation was a substantial factor in causing [name of plaintiff]'s harm.

[In determining whether [name of plaintiff]'s [condition/disease/ disorder/[describe health condition]] limits [insert major life activity], you must consider the [condition/disease/disorder/describe health condition] [in its unmedicated state/without assistive devices/[describe mitigating measures].]]

Directions for Use

If element 1 is given, the court may need to instruct the jury on the statutory definition of "employer" under the FEHA. Other covered entities nder the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, 12940(a)-(d).)

Where the existence of a qualifying disability is disputed, the court must tailor an instruction to the evidence in the case.

There appears a divergence in authority regarding whether the plaintiff is required to prove that he or she has the ability to perform the essential duties of the job. Cases involving discrimination based on disability have stated that the issue is an element of the plaintiff's burden of proof: "The plaintiff can establish a prima facie case by proving that: (1) plaintiff suffers from a disability; (2) plaintiff is a qualified individual; and (3) plaintiff was subjected to an adverse employment action because of the disability." (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236 [66 Cal.Rptr.2d 830], internal citations omitted.) However, in Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 360 [118 Cal.Rptr.2d 443], a case involving an alleged failure to provide a reasonable accommodation, the court observed that FEHA, unlike ADA, does not require a plaintiff to prove he or she is "a qualified individual with a disability."

Sources and Authority

Government Code section 12940(m) provides that it is an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in . . . subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation."

"Any employer or other covered entity shall make reasonable accommodation to the disability of any individual with a disability if the employer or other covered entity knows of the disability, unless the employer or other covered entity can demonstrate that the accommodation would impose an undue hardship." (Cal. Code Regs., tit. 2, 7293.9.)

Government Code section 12926(n) provides: "Reasonable accommodation" may include either of the following:

(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.

(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Government Code section 12940(n) provides that it is an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition."

For a definition of "mental disability," see Government Code section 12926(i).

For a definition of "physical disability," see Government Code section 12926(k).

Government Code section 12926.1(c) provides, in part: "[T]he Legislature has determined that the definitions of 'physical disability' and 'mental disability' under the law of this state require a 'limitation' upon a major life activity, but do not require, as does the Americans with Disabilities Act of 1990, a 'substantial limitation.' This distinction is intended to result in broader coverage under the law of this state than under that federal act. Under the law of this state, whether a condition limits a major life activity shall be determined without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity, regardless of federal law under the Americans with Disabilities Act of 1990. Further, under the law of this state, 'working' is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments."

"Employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an 'undue hardship.' " (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 947 [62 Cal.Rptr.2d 142].)

"[A]n employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee s interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees." (Prilliman, supra, 53 Cal.App.4th at pp. 950-951.)

" 'Ordinarily the reasonableness of an accommodation is an issue for the jury.' " (Prilliman, supra, 53 Cal.App.4th at p. 954, internal citation omitted.)

"[T]he duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA." (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 362 [118 Cal.Rptr.2d 443].)

"Under the FEHA . . . an employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would impose an 'undue hardship' on its operations or if there is no vacant position for which the employee is qualified." (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 [96 Cal.Rptr.2d 236].)

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, 306, p. 301; id. (2002 supp.) at 306, pp. 293-295

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, 762, pp. 262-263; id. (2002 supp.) at 762, 762A, pp. 159-164

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, 2.79, pp. 64-65

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, 41.32[2][c], 41.51[3][a]-[b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, 115.22, 115.35, 115.92 (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, 2:49, pp. 64-66

(New September 2003)