CACI No. 2540. Disability Discrimination - Disparate Treatment - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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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/nonbinary pronoun] based on
[his/her/nonbinary pronoun] [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 of [his/her/nonbinary pronoun] [current position/the position
for which [he/she/nonbinary pronoun] applied], either with or
without reasonable accommodation for [his/her/nonbinary
pronoun] [e.g., 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/nonbinary pronoun] personally
because [he/she/nonbinary pronoun] 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/nonbinary pronoun]
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 plaintiff]/conduct].]
New September 2003; Revised June 2006, December 2007, April 2009, December
2009, June 2010, June 2012, June 2013, December 2014, December 2016, May
2019, May 2020
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).)
This instruction is for use by both an employee and a job applicant. Select the
appropriate options in elements 2, 5, and 6 depending on the plaintiff’s status.
Modify elements 3 and 6 if the plaintiff was not actually disabled or had a history
of disability, but alleges discrimination because the plaintiff 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/nonbinary pronoun] . . .” and with language in
element 6 “That [name of employer]’s belief that . . . .”
If the plaintiff alleges discrimination on the basis of the plaintiff’s 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, with or without reasonable accommodation, 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 118].)
Read the first option for element 5 if there is no dispute as to whether the
employers 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 the plaintiff’s
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 12940(a)(1).
“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 employers
motive for the adverse employment action and cases where there is only
circumstantial evidence of the employers 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 employers 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 employers decision to implement an adverse
employment action. Instead of litigating the employers 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
employers 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; cf. Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 234 fn. 3 [206 Cal.Rptr.3d 841] [case did not present so-called
“typical” disability discrimination case, as described in Wallace, in that the
parties disputed the employers reasons for terminating plaintiff’s employment].)
“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 employers 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.)
“[Defendant] argues that, because [it] hired plaintiffs as recruit officers, they
must show they were able to perform the essential functions of a police recruit
in order to be qualified individuals entitled to protection under FEHA.
[Defendant] argues that plaintiffs cannot satisfy their burden of proof under
FEHA because they failed to show that they could perform those essential
functions. [¶] Plaintiffs do not directly respond to [defendant]’s argument.
Instead, they contend that the relevant question is whether they could perform
the essential functions of the positions to which they sought reassignment.
Plaintiffs’ argument improperly conflates the legal standards for their claim under
section 12940, subdivision (a), for discrimination, and their claim under section
12940, subdivision (m), for failure to make reasonable accommodation, including
reassignment. In connection with a discrimination claim under section 12940,
subdivision (a), the court considers whether a plaintiff could perform the
essential functions of the job held - or for job applicants, the job desired - with
or without reasonable accommodation.” (Atkins v. City of Los Angeles (2017) 8
Cal.App.5th 696, 716-717 [214 Cal.Rptr.3d 113].)
“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 employers reliance on the ‘myths,
fears or stereotypes’ frequently associated with disabilities. . . . However, the
statutory language does not expressly restrict FEHAs 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 employers 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 employers ‘mistaken’ perception, based on an unfounded fear or
stereotypical assumption. Nevertheless, FEHAs 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.)
‘[A]n employer “knows an employee has a disability when the employee tells
the employer about his condition, or when the employer otherwise becomes
aware of the condition, such as through a third party or by observation. The
employer need only know the underlying facts, not the legal significance of
those facts.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th
570, 592 [210 Cal.Rptr.3d 59].)
‘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 employers motivation and the
link between the employers 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 employers 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.)
‘[W]eight may qualify as a protected “handicap” or “disability” within the
meaning of the FEHA if medical evidence demonstrates that it results from a
physiological condition affecting one or more of the basic bodily systems and
limits a major life activity.’ . . . ‘[A]n individual who asserts a violation of the
FEHA on the basis of his or her weight must adduce evidence of a
physiological, systemic basis for the condition.’ (Cornell v. Berkeley Tennis
Club (2017) 18 Cal.App.5th 908, 928 [227 Cal.Rptr.3d 286].)
“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 (11th ed. 2017) Constitutional Law,
§§ 1045-1049
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 California 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)

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