California Civil Jury Instructions (CACI) (2017)

2540. Disability Discrimination - Disparate Treatment— Essential Factual Elements

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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] [history of [a]] [select
term to describe basis of limitations, e.g., physical 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 defendant] knew that [name of plaintiff] had [a
history of having] [a] [e.g., physical 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] [e.g.,
physical condition]];
5. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
5. [or]
5. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
5. [or]
5. [That [name of plaintiff] was constructively discharged;]
6. That [name of plaintiff]’s [history of [a]] [e.g., physical condition]
was a substantial motivating reason for [name of defendant]’s
[decision to [discharge/refuse to hire/[other adverse employment
action]] [name of plaintiff]/conduct];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[Name of plaintiff] does not need to prove that [name of defendant] held
any ill will or animosity toward [him/her] personally because [he/she]
was [perceived to be] disabled. [On the other hand, if you find that
[name of defendant] did hold ill will or animosity toward [name of
plaintiff] because [he/she] was [perceived to be] disabled, you may
consider this fact, along with all the other evidence, in determining
whether [name of plaintiff]’s [history of [a]] [e.g., physical condition] was
a substantial motivating reason for [name of defendant]’s [decision to
[discharge/refuse to hire/[other adverse employment action]] [name of
New September 2003; Revised June 2006, December 2007, April 2009, December
2009, June 2010, June 2012, June 2013, December 2014, December 2016
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations.
It may be a statutory term such as “physical disability,” “mental disability,” or
“medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term
such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
In the introductory paragraph and in elements 3 and 6, select the bracketed
language on “history” of disability if the claim of discrimination is based on a
history of disability rather than a current actual disability.
For element 1, 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).)
Modify elements 3 and 6 if plaintiff was not actually disabled or had a history of
disability, but alleges discrimination because he or she was perceived to be
disabled. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4)
[mental and physical disability include being regarded or treated as disabled by the
employer].) This can be done with language in element 3 that the employer
“treated [name of plaintiff] as if [he/she] . . . ” and with language in element 6
“That [name of employer]’s belief that . . . .”
If the plaintiff alleges discrimination on the basis of his or her association with
someone who was or was perceived to be disabled, give CACI No. 2547,
Disability-Based Associational Discrimination—Essential Factual Elements. (See
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635,
655−660 [163 Cal.Rptr.3d 392] [claim for “disability based associational
discrimination” adequately pled].)
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in element 3.
(Compare Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement
that medical condition limit major life activity].)
Regarding element 4, it is now settled that the ability to perform the essential
duties of the job is an element of the plaintiff’s burden of proof. (See Green v.
State of California (2007) 42 Cal.4th 254, 257–258 [64 Cal.Rptr.3d 390, 165 P.3d
Read the first option for element 5 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether
there was an adverse employment action is a question of fact for the jury. If
constructive discharge is alleged, give the third option for element 5 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
6 if either the second or third option is included for element 5.
Element 6 requires that the disability be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Give the optional sentence in the last paragraph if there is evidence that the
defendant harbored personal animus against the plaintiff because of his or her
If the existence of a qualifying disability is disputed, additional instructions
defining “physical disability,” “mental disability,” and “medical condition” may be
required. (See Gov. Code, § 12926(i), (j), (m).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• Inability to Perform Essential Job Duties. Government Code section
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Perception of Disability and Association With Disabled Person Protected.
Government Code section 12926(o).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “[T]he plaintiff initially has the burden to establish a prima facie case of
discrimination. The plaintiff can meet this burden by presenting evidence that
demonstrates, even circumstantially or by inference, that he or she (1) suffered
from a disability, or was regarded as suffering from a disability; (2) could
perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action
because of the disability or perceived disability. To establish a prima facie case,
a plaintiff must show ‘ “ ‘ “actions taken by the employer from which one can
infer, if such actions remain unexplained, that it is more likely than not that
such actions were based on a [prohibited] discriminatory criterion . . . .” ’ ”
. . .’ The prima facie burden is light; the evidence necessary to sustain the
burden is minimal. As noted above, while the elements of a plaintiff’s prima
facie case can vary considerably, generally an employee need only offer
sufficient circumstantial evidence to give rise to a reasonable inference of
discrimination.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310
[115 Cal.Rptr.3d 453], original italics, internal citations omitted.)
• “The distinction between cases involving direct evidence of the employer’s
motive for the adverse employment action and cases where there is only
circumstantial evidence of the employer’s discriminatory motive is critical to
the outcome of this appeal. There is a vast body of case law that addresses
proving discriminatory intent in cases where there was no direct evidence that
the adverse employment action taken by the employer was motivated by race,
religion, national origin, age or sex. In such cases, proof of discriminatory
motive is governed by the three-stage burden-shifting test established by the
United States Supreme Court in McDonnell Douglas Corp. v. Green [(1973)
411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668]. (Wallace v. County of Stanislaus
(2016) 245 Cal.App.4th 109, 123 [199 Cal.Rptr.3d 462], original italics,
footnote and internal citations omitted.)
• “The three-stage framework and the many principles adopted to guide its
application do not apply in discrimination cases where, like here, the plaintiff
presents direct evidence of the employer’s motivation for the adverse
employment action. In many types of discrimination cases, courts state that
direct evidence of intentional discrimination is rare, but disability discrimination
cases often involve direct evidence of the role of the employee’s actual or
perceived disability in the employer’s decision to implement an adverse
employment action. Instead of litigating the employer’s reasons for the action,
the parties’ disputes in disability cases focus on whether the employee was able
to perform essential job functions, whether there were reasonable
accommodations that would have allowed the employee to perform those
functions, and whether a reasonable accommodation would have imposed an
undue hardship on the employer. To summarize, courts and practitioners should
not automatically apply principles related to the McDonnell Douglas test to
disability discrimination cases. Rather, they should examine the critical
threshold issue and determine whether there is direct evidence that the motive
for the employer’s conduct was related to the employee’s physical or mental
condition.” (Wallace, supra, 245 Cal.App.4th at p. 123, original italics, footnote
and internal citations omitted.)
• “If the employee meets this [prima facie] burden, it is then incumbent on the
employer to show that it had a legitimate, nondiscriminatory reason for its
employment decision. When this showing is made, the burden shifts back to the
employee to produce substantial evidence that employer’s given reason was
either ‘untrue or pretextual,’ or that the employer acted with discriminatory
animus, in order to raise an inference of discrimination.” (Furtado v. State
Personnel Bd. (2013) 212 Cal.App.4th 729, 744 [151 Cal.Rptr.3d 292], internal
citations omitted.)
• “Although the same statutory language that prohibits disability discrimination
also prohibits discrimination based on race, age, sex, and other factors, we
conclude that disability discrimination claims are fundamentally different from
the discrimination claims based on the other factors listed in section 12940,
subdivision (a). These differences arise because (1) additional statutory
provisions apply to disability discrimination claims, (2) the Legislature made
separate findings and declarations about protections given to disabled persons,
and (3) discrimination cases involving race, religion, national origin, age and
sex, often involve pretexts for the adverse employment action—an issue about
motivation that appears less frequently in disability discrimination cases.”
(Wallace, supra, 245 Cal.App.4th at p. 122.)
• “Summary adjudication of the section 12940(a) claim . . . turns on . . .
whether [plaintiff] could perform the essential functions of the relevant job with
or without accommodation. [Plaintiff] does not dispute that she was unable to
perform the essential functions of her former position as a clothes fitter with or
without accommodation. Under federal law, however, when an employee seeks
accommodation by being reassigned to a vacant position in the company, the
employee satisfies the ‘qualified individual with a disability’ requirement by
showing he or she can perform the essential functions of the vacant position
with or without accommodation. The position must exist and be vacant, and the
employer need not promote the disabled employee. We apply the same rule
here. To prevail on summary adjudication of the section 12940(a) claim,
[defendant] must show there is no triable issue of fact about [plaintiff]’s ability,
with or without accommodation, to perform the essential functions of an
available vacant position that would not be a promotion.” (Nadaf-Rahrov v. The
Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 965 [83 Cal.Rptr.3d
190], original italics, internal citations omitted.)
• “To establish a prima facie case of mental disability discrimination under
FEHA, a plaintiff must show the following elements: (1) She suffers from a
mental disability; (2) she is otherwise qualified to do the job with or without
reasonable accommodation; and (3) she was subjected to an adverse
employment action because of the disability.” (Higgins-Williams v. Sutter
Medical Foundation (2015) 237 Cal.App.4th 78, 84 [187 Cal.Rptr.3d 745].)
• “At most, [plaintiff] alleges only that he anticipated becoming disabled for some
time after the organ donation. This is insufficient. [Plaintiff] cannot pursue a
cause of action for discrimination under FEHA on the basis of his ‘actual’
physical disability in the absence of factual allegations that he was in fact,
physically disabled.” (Rope,supra, 220 Cal.App.4th at p. 659.)
• “[Defendant] asserts the statute’s ‘regarded as’ protection is limited to persons
who are denied or who lose jobs based on an employer’s reliance on the
‘myths, fears or stereotypes’ frequently associated with disabilities. . . .
However, the statutory language does not expressly restrict FEHA’s protections
to the narrow class to whom [defendant] would limit its coverage. To impose
such a restriction would exclude from protection a large group of individuals,
like [plaintiff], with more mundane long-term medical conditions, the
significance of which is exacerbated by an employer’s failure to reasonably
accommodate. Both the policy and language of the statute offer protection to a
person who is not actually disabled, but is wrongly perceived to be. The
statute’s plain language leads to the conclusion that the ‘regarded as’ definition
casts a broader net and protects any individual ‘regarded’ or ‘treated’ by an
employer ‘as having, or having had, any physical condition that makes
achievement of a major life activity difficult’ or may do so in the future. We
agree most individuals who sue exclusively under this definitional prong likely
are and will continue to be victims of an employer’s ‘mistaken’ perception,
based on an unfounded fear or stereotypical assumption. Nevertheless, FEHA’s
protection is nowhere expressly premised on such a factual showing, and we
decline the invitation to import such a requirement.” (Gelfo v. Lockheed Martin
Corp. (2006) 140 Cal.App.4th 34, 53 [43 Cal.Rptr.3d 874], original italics,
internal citations omitted.)
• “[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.)
• “We say on this record that [defendant] took action against [plaintiff] based on
concerns or fear about his possible future disability. The relevant FEHA
definition of an individual regarded as disabled applies only to those who suffer
certain specified physical disabilities or those who have a condition with ‘no
present disabling effect’ but which ‘may become a physical disability . . . .’
According to the pleadings, [defendant] fired [plaintiff] to avoid accommodating
him because of his association with his physically disabled sister. That is not a
basis for liability under the ‘regarded as’ disabled standard.” (Rope,supra, 220
Cal.App.4th at p. 659, internal citations omitted.)
• “ ‘An adverse employment decision cannot be made “because of” a disability,
when the disability is not known to the employer. Thus, in order to prove [a
discrimination] claim, a plaintiff must prove the employer had knowledge of the
employee’s disability when the adverse employment decision was made. . . .
While knowledge of the disability can be inferred from the circumstances,
knowledge will only be imputed to the employer when the fact of disability is
the only reasonable interpretation of the known facts. “Vague or conclusory
statements revealing an unspecified incapacity are not sufficient to put an
employer on notice of its obligations . . . .” . . .’ ” (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1008 [93 Cal.Rptr.3d 338].)
• “[W]e interpret FEHA as authorizing an employer to distinguish between
disability-caused misconduct and the disability itself in the narrow context of
threats or violence against coworkers. If employers are not permitted to make
this distinction, they are caught on the horns of a dilemma. They may not
discriminate against an employee based on a disability but, at the same time,
must provide all employees with a safe work environment free from threats and
violence.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 166 [125
Cal.Rptr.3d 1], internal citations omitted.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply amotivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris,supra, 56 Cal.4th at p.232, original
• “We do not suggest that discrimination must be alone sufficient to bring about
an employment decision in order to constitute a substantial motivating factor.
But it is important to recognize that discrimination can be serious,
consequential, and even by itself determinative of an employment decision
without also being a “but for” cause.” (Harris,supra, 56 Cal.4th at p. 229.)
• “We note that the court in Harris discussed the employer’s motivation and the
link between the employer’s consideration of the plaintiff’s physical condition
and the adverse employment action without using the terms “animus,”
“animosity,” or “ill will.” The absence of a discussion of these terms necessarily
implies an employer can violate section 12940, subdivision (a) by taking an
adverse employment action against an employee “because of” the employee’s
physical disability even if the employer harbored no animosity or ill will against
the employee or the class of persons with that disability.” (Wallace, supra, 245
Cal.App.4th at p. 128.)
• “Based on Harris, we conclude that an employer has treated an employee
differently ‘because of’ a disability when the disability is a substantial
motivating reason for the employer’s decision to subject the [employee] to an
adverse employment action. This conclusion resolves how the jury should have
been instructed on [defendant]’s motivation or intent in connection with the
disability discrimination claim.” (Wallace, supra, 245 Cal.App.4th at p. 128.)
• “We conclude that where, as here, an employee is found to be able to safely
perform the essential duties of the job, a plaintiff alleging disability
discrimination can establish the requisite employer intent to discriminate by
proving (1) the employer knew that plaintiff had a physical condition that
limited a major life activity, or perceived him to have such a condition, and (2)
the plaintiff’s actual or perceived physical condition was a substantial
motivating reason for the defendant’s decision to subject the plaintiff to an
adverse employment action. . . . [T]his conclusion is based on (1) the
interpretation of section 12940’s term ‘because of’ adopted in Harris; (2) our
discussion of the meaning of the statutory phrase ‘to discriminate against’; and
(3) the guidance provided by the current versions of CACI Nos. 2540 and 2507.
[¶] Therefore, the jury instruction that [plaintiff] was required to prove that
[defendant] ‘regarded or treated [him] as having a disability in order to
discriminate’ was erroneous.” (Wallace, supra, 245 Cal.App.4th at p. 129.)
• “The word ‘animus’ is ambiguous because it can be interpreted narrowly to
mean ‘ill will’ or ‘animosity’ or can be interpreted broadly to mean ‘intention.’
In this case, it appears [defendant] uses ‘animus’ to mean something more than
the intent described by the substantial-motivating-reason test adopted in Harris.
(Wallace, supra, 245 Cal.App.4th at p. 130, fn. 14, internal citation omitted.)
• “Being unable to work during pregnancy is a disability for the purposes of
section 12940.” (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340
[153 Cal.Rptr.3d 367].)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 936,
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2160–9:2241 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, §§ 2.78–2.80
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.32[2][c] (Matthew Bender)
11 xCalifornia Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.14. 115.23, 115.34, 115.77[3][a] (Matthew Bender)
California Civil Practice: Employment Litigation § 2:46 (Thomson Reuters)