CACI No. 2541. Disability Discrimination - Reasonable Accommodation - Essential Factual Elements (Gov. Code, § 12940(m))

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun][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/nonbinary pronoun] 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 duties of
[[his/her/nonbinary pronoun] current position or a vacant
alternative position to which [he/she/nonbinary pronoun] could
have been reassigned/the position for which [he/she/nonbinary
pronoun] applied] with reasonable accommodation for [his/her/
nonbinary pronoun][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, May 2019
Directions for Use
Select a term to use throughout to describe the source of the plaintiff’s limitations. It
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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.”
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 and 5 depending on the plaintiff’s status.
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/nonbinary pronoun] 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 the plaintiff 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
the employee 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 the employee with other suitable job positions that the employee
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
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[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, other
courts have said that it is the employee’s burden to prove that a reasonable
accommodation could have been made, i.e., that the employee 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 the plaintiff is a qualified individual by establishing that the plaintiff 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).
• “There are three elements to a failure to accommodate action: ‘(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.
[Citation.]’ ” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22
Cal.App.5th 1187, 1193-1194 [232 Cal.Rptr.3d 349].)
• “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, 969 [181 Cal.Rptr.3d 553],
original italics.)
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• “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
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].)
• “A term of leave from work can be a reasonable accommodation under FEHA,
and, therefore, a request for leave can be considered to be a request for
accommodation under FEHA.” (Moore v. Regents of University of California
(2016) 248 Cal.App.4th 216, 243 [206 Cal.Rptr.3d 841], internal citation
omitted.)
• “Failure to accommodate claims are not subject to the McDonnell Douglas
burden-shifting framework.” (Cornell v. Berkeley Tennis Club (2017) 18
Cal.App.5th 908, 926 [227 Cal.Rptr.3d 286].)
• “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
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same level exists.’ [Citations.]” [Citations.]’ ” (Furtado, supra, 212 Cal.App.4th
at p. 745.)
• “[A]n employee’s probationary status does not, in and of itself, deprive an
employee of the protections of FEHA, including a reasonable reassignment. The
statute does not distinguish between the types of reasonable accommodations an
employer may have to provide to employees on probation or in training and
those an employer may have to provide to other employees. We decline to read
into FEHA a limitation on an employee’s eligibility for reassignment based on
an employee’s training or probationary status. Instead, the trier of fact should
consider whether an employee is on probation or in training in determining
whether a particular reassignment is comparable in pay and status to the
employee’s original position.” (Atkins v. City of Los Angeles (2017) 8
Cal.App.5th 696, 724 [214 Cal.Rptr.3d 113], internal citations omitted.)
• “[A] disabled employee seeking reassignment to a vacant position ‘is entitled to
preferential consideration.’ ” (Swanson, supra, 232 Cal.App.4th at p. 970.)
• “ ‘Generally, “ ‘[t]he employee bears the burden of giving the employer notice of
the disability.’ ” ’ An employer, in other words, has no affirmative duty to
investigate whether an employee’s illness might qualify as a disability. ‘ “ ‘[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.’ ” ’ ” (Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167 [217 Cal.Rptr.3d
258], 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.” ’ . . . [¶] ‘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 under the [FEHA].” ’ ”
(Featherstone, supra, 10 Cal.App.5th at p. 1167, internal citations omitted.)
• “In other words, so long as the employer is aware of the employee’s condition,
there is no requirement that the employer be aware that the condition is
considered a disability under the FEHA. By the same token, it is insufficient to
tell the employer merely that one is disabled or requires an accommodation.”
(Cornell,supra, 18 Cal.App.5th at p. 938, internal citation omitted.)
• “ ‘ “ ‘This notice then triggers the employer’s burden to take “positive steps” to
accommodate the employee’s limitations. . . . [¶] . . . The employee, of course,
retains a duty to cooperate with the employer’s efforts by explaining [his or her]
disability and qualifications. [Citation.] Reasonable accommodation thus
envisions an exchange between employer and employee where each seeks and
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shares information to achieve the best match between the [employee’s]
capabilities and available positions.’ ” ’ ” (Soria v. Univision Radio Los Angeles,
Inc. (2016) 5 Cal.App.5th 570, 598 [210 Cal.Rptr.3d 59].)
• “Employers must make reasonable accommodations to the disability of an
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.)
• “[A]n 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 . . . .” (Atkins,
supra, 8 Cal.App.5th at p. 721.)
• “The question whether plaintiffs could perform the essential functions of a
position to which they sought reassignment is relevant to a claim for failure to
accommodate under section 12940, subdivision (m) . . . .” (Atkins, supra,8
Cal.App.5th at p. 717.)
• “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].)
• “While a claim of failure to accommodate is independent of a cause of action
for failure to engage in an interactive dialogue, each necessarily implicates the
other.” (Moore, supra, 248 Cal.App.4th at p. 242.)
• “[A] pretextual termination of a perceived-as-disabled employee’s employment in
lieu of providing reasonable accommodation or engaging in the interactive
process does not provide an employer a reprieve from claims for failure to
accommodate and failure to engage in the interactive process.” (Moore, supra,
248 Cal.App.4th at p. 244.)
• “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].)
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• “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.)
• “While ‘a finite leave can be a reasonable accommodation under FEHA,
provided it is likely that at the end of the leave, the employee would be able to
perform . . . her duties’, a finite leave is not a reasonable accommodation when
the leave leads directly to termination of employment because the employee’s
performance could not be evaluated while she was on the leave.” (Hernandez,
supra, 22 Cal.App.5th at p. 1194.)
Secondary Sources
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 977
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)
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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