California Civil Jury Instructions (CACI) (2017)

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

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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] [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 plaintiff] had/[name of defendant] treated [name of
plaintiff] as if [he/she] had] [a] [e.g., physical condition] [that
limited [insert major life activity]];
[4. That [name of defendant] knew of [name of plaintiff]’s [e.g.,
physical condition] [that limited [insert major life activity]];]
5. That [name of plaintiff] was able to perform the essential job
duties with reasonable accommodation for [his/her] [e.g., physical
condition];
6. That [name of defendant] failed to provide reasonable
accommodation for [name of plaintiff]’s [e.g., physical condition];
7. That [name of plaintiff] was harmed; and
8. 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 [e.g., physical condition]
limits [insert major life activity], you must consider the [e.g., physical
condition] [in its unmedicated state/without assistive devices/[describe
mitigating measures]].]
New September 2003; Revised April 2007, December 2007, April 2009, December
2009, June 2010, December 2011, June 2012, June 2013
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
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such as “condition,” “disease,” or “disorder.” Or it may be a specific health
condition such as “diabetes.”
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).)
If medical-condition discrimination as defined by statute (see Gov. Code,
§ 12926(i)) is alleged, omit “that limited [insert major life activity]” in elements 3
and 4 and do not include the last paragraph. (Compare Gov. Code, § 12926(i) with
Gov. Code, § 12926(j), (m) [no requirement that medical condition limit major life
activity].)
In a case of perceived disability, include “[name of defendant] treated [name of
plaintiff] as if [he/she] had” in element 3, and delete optional element 4. (See Gov.
Code, § 12926(j)(4), (m)(4) [mental and physical disability include being regarded
or treated as disabled by the employer].) In a case of actual disability, include
“[name of plaintiff] had” in element 3, and give element 4.
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).)
The California Supreme Court has held that under Government Code section
12940(a), the plaintiff is required to prove that he or she has the ability to perform
the essential duties of the job with or without reasonable accommodation. (See
Green v. State of California (2007) 42 Cal.4th 254, 260 [64 Cal.Rptr.3d 390, 165
P.3d 118].) While the court left open the question of whether the same rule should
apply to cases under Government Code section 12940(m) (see id. at p. 265),
appellate courts have subsequently placed the burden on the employee to prove that
he or she would be able to perform the job duties with reasonable accommodation
(see element 5). (See Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757,
766 [123 Cal.Rptr.3d 562]; Nadaf-Rahrov v. The Neiman Marcus Group, Inc.
(2008) 166 Cal.App.4th 952, 973–979 [83 Cal.Rptr.3d 190].)
There may still be an unresolved issue if the employee claims that the employer
failed to provide him or her with other suitable job positions that he or she might
be able to perform with reasonable accommodation. The rule has been that the
employer has an affirmative duty to make known to the employee other suitable job
opportunities and to determine whether the employee is 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 v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935,
950–951 [62 Cal.Rptr.2d 142]; see also Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 745 [151 Cal.Rptr.3d 292]; Claudio v. Regents of the University
of California (2005) 134 Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837]; Hanson v.
Lucky Stores (1999) 74 Cal.App.4th 215, 226 [87 Cal.Rptr.2d 487].) In contrast,
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other courts have said that it is the employee’s burden to prove that a reasonable
accommodation could have been made, i.e., that he or she was qualified for a
position in light of the potential accommodation. (See Nadaf-Rahrov, supra, 166
Cal.App.4th at p. 978; see also Cuiellette, supra, 194 Cal.App.4th at p. 767
[plaintiff proves he or she is a qualified individual by establishing that he or she
can perform the essential functions of the position to which reassignment is
sought].) The question of whether the employee has to present evidence of other
suitable job descriptions and prove that a vacancy existed for a position that the
employee could do with reasonable accommodation may not be fully resolved.
No element has been included that requires the plaintiff to specifically request
reasonable accommodation. Unlike Government Code section 12940(n) on the
interactive process (see CACI No. 2546, Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process), section 12940(m) does
not specifically require that the employee request reasonable accommodation; it
requires only that the employer know of the disability. (See Prilliman, supra, 53
Cal.App.4th at pp. 950–951.)
Sources and Authority
• Reasonable Accommodation Required. Government Code section 12940(m).
“Reasonable Accommodation” Explained. Government Code section 12926(p).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• “Substantial” Limitation Not Required. Government Code section 12926.1(c).
• “The essential elements of a failure to accommodate claim are: (1) the plaintiff
has a disability covered by the FEHA; (2) the plaintiff is a qualified individual
(i.e., he or she can perform the essential functions of the position); and (3) the
employer failed to reasonably accommodate the plaintiff’s disability.”
(Cuiellette,supra, 194 Cal.App.4th at p. 766.)
• “Under the FEHA, ‘reasonable accommodation’ means ‘a modification or
adjustment to the workplace that enables the employee to perform the essential
functions of the job held or desired.’ ” (Cuiellette,supra, 194 Cal.App.4th at p.
766.)
• “Reasonable accommodations include ‘[j]ob restructuring, part-time or modified
work schedules, reassignment to a vacant position, . . . and other similar
accommodations for individuals with disabilities.’ ” (Swanson v. Morongo
Unified School Dist. (2014) 232 Cal.App.4th 954, 968 [181 Cal.Rptr.3d 553],
original italics.)
• “The examples of reasonable accommodations in the relevant statutes and
regulations include reallocating nonessential functions or modifying how or
when an employee performs an essential function, but not eliminating essential
functions altogether. FEHA does not obligate the employer to accommodate the
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employee by excusing him or her from the performance of essential functions.”
(Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375 [184
Cal.Rptr.3d 9].)
• “The question now arises whether it is the employees’ burden to prove that a
reasonable accommodation could have been made, i.e., that they were qualified
for a position in light of the potential accommodation, or the employers’ burden
to prove that no reasonable accommodation was available, i.e., that the
employees were not qualified for any position because no reasonable
accommodation was available. [¶¶] Applying Green’s burden of proof analysis
to section 12940(m), we conclude that the burden of proving ability to perform
the essential functions of a job with accommodation should be placed on the
plaintiff under this statute as well. First, . . . an employee’s ability to perform
the essential functions of a job is a prerequisite to liability under section
12940(m). Second, the Legislature modeled section 12940(m) on the federal
reasonable accommodation requirement (adopting almost verbatim the federal
statutory definition of ‘reasonable accommodation’ by way of example). Had
the Legislature intended the employer to bear the burden of proving ability to
perform the essential functions of the job, contrary to the federal allocation of
the burden of proof, . . . it could have expressly provided for that result, but it
did not. Finally, general evidentiary principles support allocating the burden of
proof on this issue to the plaintiff.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at
pp. 977–978, internal citations omitted.)
• “ ‘If the employee cannot be accommodated in his or her existing position and
the requested accommodation is reassignment, an employer must make
affirmative efforts to determine whether a position is available. [Citation.] A
reassignment, however, is not required if “there is no vacant position for which
the employee is qualified.” [Citations.] “The responsibility to reassign a disabled
employee who cannot otherwise be accommodated does ‘not require creating a
new job, moving another employee, promoting the disabled employee or
violating another employee’s rights . . . .” ’ [Citations.] “What is required is the
‘duty to reassign a disabled employee if an already funded, vacant position at
the same level exists.’ [Citations.]” [Citations.]’ ” (Furtado,supra, 212
Cal.App.4th at p. 745.)
• “[A] disabled employee seeking reassignment to a vacant position ‘is entitled to
preferential consideration.’ ” (Swanson, supra, 232 Cal.App.4th at p. 970.)
• “Although no particular form of request is required, ‘ “[t]he duty of an
employer reasonably to accommodate an employee’s handicap does not arise
until the employer is ‘aware of respondent’s disability and physical limitations.’
. . .” ’ ‘ “[T]he employee can’t expect the employer to read his mind and know
he secretly wanted a particular accommodation and sue the employer for not
providing it. Nor is an employer ordinarily liable for failing to accommodate a
disability of which it had no knowledge. . . .” . . .’ ” (Avila, supra, 165
Cal.App.4th at pp. 1252–1253, internal citations omitted.)
• “Employers must make reasonable accommodations to the disability of an
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individual unless the employer can demonstrate that doing so would impose an
‘undue hardship.’ ” (Prilliman,supra, 53 Cal.App.4th at p. 947.)
• “ ‘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, supra, 97 Cal.App.4th at p. 362.)
• “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].)
• “On these issues, which are novel to California and on which the federal courts
are divided, we conclude that employers must reasonably accommodate
individuals falling within any of FEHA’s statutorily defined ‘disabilities,’
including those ‘regarded as’ disabled, and must engage in an informal,
interactive process to determine any effective accommodations.” (Gelfo v.
Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 55 [43 Cal.Rptr.3d 874].)
• “Appellant also stated a viable claim under section 12940, subdivision (m),
which mandates that an employer provide reasonable accommodations for the
known physical disability of an employee. She alleged that she was unable to
work during her pregnancy, that she was denied reasonable accommodations for
her pregnancy-related disability and terminated, and that the requested
accommodations would not have imposed an undue hardship on [defendant]. A
finite leave of greater than four months may be a reasonable accommodation for
a known disability under the FEHA.” (Sanchez v. Swissport, Inc. (2013) 213
Cal.App.4th 1331, 1341 [153 Cal.Rptr.3d 367].)
• “To the extent [plaintiff] claims the [defendant] had a duty to await a vacant
position to arise, he is incorrect. A finite leave of absence may be a reasonable
accommodation to allow an employee time to recover, but FEHA does not
require the employer to provide an indefinite leave of absence to await possible
future vacancies.” (Nealy, supra, 234 Cal.App.4th at pp. 377–378.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 762
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2250–9:2285, 9:2345–9:2347
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, §§ 41.32[2][c], 41.51[3] (Matthew Bender)
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11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.35, 115.92 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:50 (Thomson Reuters)
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