California Civil Jury Instructions (CACI) (2017)

2543. Disability Discrimination - Affirmative Defense— Inability to Perform Essential Job Duties

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2543.Disability Discrimination—“Essential Job Duties” Explained
(Gov. Code, §§ 12926(f), 12940(a)(1))
In deciding whether a job duty is essential, you may consider, among
other factors, the following:
a. Whether the reason the job exists is to perform that duty;
b. Whether there is a limited number of employees available who
can perform that duty;
c. Whether the job duty is highly specialized so that the person
currently holding the position was hired for his or her expertise
or ability to perform the particular duty.
Evidence of whether a particular duty is essential includes, but is not
limited to, the following:
a. [Name of defendant]’s judgment as to which functions are
essential;
b. Written job descriptions prepared before advertising or
interviewing applicants for the job;
c. The amount of time spent on the job performing the duty;
d. The consequences of not requiring the person currently holding
the position to perform the duty;
e. The terms of a collective bargaining agreement;
f. The work experiences of past persons holding the job;
g. The current work experience of persons holding similar jobs;
h. Reference to the importance of the job in prior performance
reviews.
“Essential job duties” do not include the marginal duties of the position.
“Marginal duties” are those that, if not performed would not eliminate
the need for the job, or those that could be readily performed by
another employee, or those that could be performed in another way.
New September 2003; Revoked June 2013; Restored and Revised December 2013
Directions for Use
Give this instruction with CACI No. 2540, Disability Discrimination—Disparate
Treatment—Essential Factual Elements, or CACI No. 2541, Disability
Discrimination—Reasonable Accommodation—Essential Factual Elements, or both,
if it is necessary to explain what is an “essential job duty.” (See Gov. Code,
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§§ 12926(f), 12940(a)(1); see also Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 743–744 [151 Cal.Rptr.3d 292].) While the employee has the
burden to prove that he or she can perform essential job duties, with or without
reasonable accommodation, it is unresolved which party has the burden of proving
that a job duty is essential. (See Lui v. City and County of San Francisco (2012)
211 Cal.App.4th 962, 972–973 [150 Cal.Rptr.3d 385].)
Sources and Authority
• Ability to Perform Essential Duties. Government Code section 12940(a)(1).
“Essential Functions” Defined. Government Code section 12926(f).
• Evidence of Essential Functions. 2 California Code of Regulations section
11065(e)(2).
• Marginal Functions. 2 California Code of Regulations section 11065(e)(3).
• “ ‘ “Essential functions” means the fundamental job duties of the employment
position the individual with a disability holds or desires. “Essential functions”
does not include the marginal functions of the position.’ ‘ “Marginal functions”
of an employment position are those that, if not performed, would not eliminate
the need for the job or that could be readily performed by another employee or
that could be performed in an alternative way.’ ‘A job function may be
considered essential for any of several reasons, including, but not limited to,
any one or more of the following: [¶] (A) . . . [T]he reason the position exists
is to perform that function. [¶] (B) . . . [T]he limited number of employees
available among whom the performance of that job function can be distributed.
[¶] [And] (C) . . . the incumbent in the position is hired for his or her expertise
or ability to perform the particular [highly specialized] function.’ ” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 373 [184 Cal.Rptr.3d 9],
internal citations omitted.)
• “The identification of essential job functions is a ‘highly fact-specific inquiry.’ ”
(Lui, supra, 211 Cal.App.4th at p. 971.)
• “It is clear that plaintiff bore the burden of proving ‘that he or she is a qualified
individual under the FEHA (i.e., that he or she can perform the essential
functions of the job with or without reasonable accommodation).’ It is less clear
whether that burden included the burden of proving what the essential functions
of the position are, rather than just plaintiff’s ability to perform the essential
functions. Under the ADA, a number of federal decisions have held that
‘[a]lthough the plaintiff bears the ultimate burden of persuading the fact finder
that he can perform the job’s essential functions, . . . “an employer who
disputes the plaintiff’s claim that he can perform the essential functions must
put forth evidence establishing those functions.” [Citation.]’ . . . Arguably,
plaintiff’s burden of proving he is a qualified individual includes the burden of
proving which duties are essential functions of the positions he seeks.
Ultimately, we need not and do not decide in the present case which party bore
the burden of proof on the issue at trial . . . .” (Lui, supra, 211 Cal.App.4th at
pp. 972–973, internal citations omitted.)
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• “The trial court’s essential functions finding is also supported by the evidence
presented by defendant corresponding to the seven categories of evidence listed
in [Government Code] section 12926(f)(2). ‘Usually no one listed factor will be
dispositive . . . .’ ” (Lui, supra, 211 Cal.App.4th at p. 977.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 936,
937
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group)
¶¶ 8:744, 9:2298, 9:2402–9:2403, 9:2405, 9:2420
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, § 41.97[1] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.22, 115.54, 115.104 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)
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