California Civil Jury Instructions (CACI)

2544. Disability Discrimination - Affirmative Defense—Health or Safety Risk

[Name of defendant] claims that [his/her/its] conduct was lawful because, even with reasonable accommodations, [name of plaintiff] was unable to perform an essential job duty without endangering [[his/her] health or safety] [or] [the health or safety of others]. To succeed, [name of defendant] must prove both of the following:

1. That [describe job duty] was an essential job duty; and

2. That even with reasonable accommodations, [name of plaintiff] could not [describe job duty] without endangering [[his/her] health or safety] [or] [the health or safety of others] more than if an individual without a disability performed the job duty.

[In determining whether [name of plaintiff]'s performance of the job duty would endanger [his/her] health or safety, you must decide whether the performance of the job duty presents an immediate and substantial degree of risk to [him/her].]

In deciding whether a job duty is essential, you may consider, among other factors, the following: a. Whether the reason the job exists is to perform that duty; b. The number of employees available who can perform that duty; and . Whether the job duty is highly specialized.

Sources and Authority

Government Code section 12940(a)(1) provides that the FEHA "does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability . . . cannot perform those [essential] duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations."

The California Fair Employment and Housing Commission's regulations provide: "It is a permissible defense for an employer . . . to emonstrate that after reasonable accommodation the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger his or her health or safety because the job imposes an imminent and substantial degree of risk to the applicant or employee . . . . It is a permissible defense for an employer . . . to demonstrate that after reasonable accommodation has been made, the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job . . . . However, it is no defense to assert that an individual with a disability has a condition or a disease with a future risk, so long as the condition or disease does not presently interfere with his or her ability to perform the job in a manner that will not immediately endanger the individual with a disability or others, and the individual is able to safely perform the job over a reasonable length of time." (Cal. Code Regs., tit. 2, § 7293.8(c)-(e).)

"FEHA's 'danger to self' defense has a narrow scope; an employer must offer more than mere conclusions or speculation in order to prevail on the defense . . . . As one court said, '[t]he defense requires that the employee face an "imminent and substantial degree of risk" in performing the essential functions of the job.' An employer may not terminate an employee for harm that is merely potential . . . . In addition, in cases in which the employer is able to establish the 'danger to self' defense, it must also show that there are 'no "available reasonable means of accommodation which could, without undue hardship to [the employer], have allowed [the plaintiff] to perform the essential job functions . . . without danger to himself." ' " (Wittkopf v. County of Los Angeles (2001) 90 Cal.App.4th 1205, 1218-1219 [109 Cal.Rptr.2d 543], internal citations omitted.)

"An employer may refuse to hire persons whose physical handicap prevents them from performing their duties in a manner which does not endanger their health. Unlike the BFOQ defense, this exception must be tailored to the individual characteristics of each applicant . . . in relation to specific, legitimate job requirements . . . . [Defendant's] evidence, at best, shows a possibility [plaintiff] might endanger his health sometime in the future. In the light of the strong policy for providing equal employment opportunity, such conjecture will not justify a refusal to employ a handicapped person." (Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798, 799 [175 Cal.Rptr. 548], internal citations and footnote omitted.)

"The employer has the burden of proving the defense of the threat to the health and safety of other workers by a preponderance of the evidence." (Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252 [261 Cal.Rptr. 197].)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 762, p. 263; id. (2002 supp.) at § 762A, pp. 161-164

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, § 2.111, p. 84

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.54[b], 115.104 (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2:82, pp. 102-103

(New September 2003)