California Civil Jury Instructions (CACI)
2542. Disability Discrimination - "Reasonable Accommodation" Explained
A reasonable accommodation is a reasonable change to the workplace that [choose one or more of the following]
[gives a qualified applicant with a disability an equal opportunity in the job application process;]
[allows an employee with a disability to perform the essential duties of the job;] [or]
[allows an employee with a disability to enjoy the same benefits and privileges of employment that are available to employees without disabilities.]
Reasonable accommodations may include the following:
a. Making the workplace readily accessible to and usable by employees with disabilities;
b. Changing job responsibilities or work schedules;
c. Reassigning the employee to a vacant position;
d. Modifying or providing equipment or devices;
e. Modifying tests or training materials;
f. Providing qualified interpreters or readers; or
g. Providing other similar accommodations for an individual with a disability.
If more than one accommodation is reasonable, an employer satisfies its obligation to make a reasonable accommodation if it selects one of those accommodations in good faith.
Sources and Authority
Government Code section 12940(m) provides that it is an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in . . . subdivision (a) shall be construed to require an ccommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation."
Government Code section 12926(n) provides: "Reasonable accommodation" may include either of the following:
(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
The California Fair Employment and Housing Commission's regulations provide:
Reasonable accommodation may, but does not necessarily, include, nor is it limited to, such measures as:
(1) Accessibility. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
(2) Job Restructuring. Job restructuring, reassignment to a vacant position, part-time or modified work schedules, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar actions." (Cal. Code Regs., tit. 2, § 7293.9(a).)
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 duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA." (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 362 [118 Cal.Rptr.2d 443].)
"[A]n employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer 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].)
"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].)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, § 2.79, pp. 64-65
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.51[a]-[b] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.35 (Matthew Bender)
Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2:49, pp. 64-65
(New September 2003)