California Civil Jury Instructions (CACI)

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

[Name of defendant] claims that [his/her/its] conduct was lawful because [name of plaintiff] was unable to perform an essential job duty even with reasonable accommodations. To succeed, [name of defendant] must prove both of the following:

1. That [describe job duty] was an essential job duty; and

2. That [name of plaintiff] could not perform it, even with reasonable accommodations.

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. The number of employees available who can perform that duty; and

c. Whether the job duty is highly specialized.

Sources and Authority

Government Code section 12940(a)(1) provides that the FEHA "does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations."

Government Code section 12926(f) provides, in part, that " '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."

Government Code section 12926(f) provides, in part:

(1) 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) The function may be essential because the reason the position exists is to perform that function.

(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.

(C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:

(A) The employer'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 function.

(D) The consequences of not requiring the incumbent to perform the function.

(E) The terms of a collective bargaining agreement.

(F) The work experiences of past incumbents in the job.

(G) The current work experience of incumbents in similar jobs.

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 762, p. 263; id. (2002 supp.) at § 762A, pp. 161-164

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed. 2000) Discrimination Claims, § 2.79, p. 64

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[b], 115.104 (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Discrimination in Employment, § 2:82, pp. 102-103; id. (2001 supp.) at § 2:46, pp. 50-52

(New September 2003)