California Civil Jury Instructions (CACI)

2540. Disability Discrimination - Disparate Treatment— Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her] based on [his/her] [physical/ mental] disability. 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 defendant] [knew/thought] [name of plaintiff] had a [physical/mental] [condition/disease/disorder/[describe health condition]] that limited [insert major life activity];] [or]

[That [name of defendant] [knew/thought] [name of plaintiff] had a history of having a [physical/mental] [condition/ disease/disorder/[describe health condition]] that limited [insert major life activity];]

4. That [name of plaintiff] was able to perform the essential job duties [with reasonable accommodation for [his/her] condition];

5. That [name of defendant] [discharged/refused to hire/[other adverse employment action]] [name of plaintiff];

6. [That [name of plaintiff]'s [history of a] [physical/mental] [condition/disease/disorder/[describe health condition]] was a motivating reason for the [discharge/refusal to hire/[other adverse employment action]];] [or]

[That [name of defendant]'s belief that [name of plaintiff] had [a history of] the [physical/mental] [condition/disease/ disorder/[describe health condition]] was a motivating reason for the [discharge/refusal to hire/other adverse employment action];]

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

8. That [name of defendant]'s [decision/conduct] was a substantial factor in causing [name of plaintiff]'s harm.

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 under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, § 12940(a)-(d).)

Under element 3, select the claimed basis of discrimination: an actual disability, a record of a disability, and/or a perceived disability. If the only claimed basis of discrimination is a perceived disability, then delete element 4.

The FEHA also prohibits medical condition discrimination, but defines "medical condition" narrowly (see Gov. Code, § 12926(h)). This instruction may be modified for use for a medical condition discrimination claim under the FEHA.

Regarding element 4, there appears a divergence in authority on 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."

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

Sources and Authority

Government Code section 12940(a) provides that it is an unlawful employment practice "[f]or an employer, because of the . . . physical isability, mental disability, [or] medical condition . . . of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment."

Government Code section 12940(a)(1) also 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, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those 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."

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."

"[T]he purpose of the 'regarded-as' prong is to protect individuals rejected from a job because of the 'myths, fears and stereotypes' associated with disabilities. In other words, to find a perceived disability, the perception must stem from a false idea about the existence of or the limiting effect of a disability." (Diffey v. Riverside County Sheriff's Dept. (2000) 84 Cal.App.4th 1031, 1037 [101 Cal.Rptr.2d 353], internal citation omitted.)

"An adverse employment decision cannot be made 'because of' a disability when the disability is not known to the employer . . . . [A] plaintiff must prove the employer had knowledge of the employee's disability when the adverse employment decision was made." (Brundage, supra, 57 Cal.App.4th at pp. 236-237.)

Secondary Sources

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, § 2.78, pp. 61-63

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.32[2][c] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.14, 115.23, 115.34, 115.77[3][a] (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, §§ 2:45-2:46, pp. 59-61; id. (2001 supp.) at § 2:46, pp. 50-52

(New September 2003)