CACI No. 2543. Disability Discrimination - “Essential Job Duties” Explained (Gov. Code, §§ 12926(f), 12940(a)(1))

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
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 the person’s 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;
Revised May 2020
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,
1592
Copyright Judicial Council of California
if it is necessary to explain what is an “essential job duty.” (See Gov. Code,
§§ 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 the employee 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.)
• “Evidence of ‘essential functions’ may include the employer’s judgment, written
job descriptions, the amount of time spent on the job performing the function,
the consequences of not requiring employees to perform the function, the terms
of a collective bargaining agreement, the work experiences of past incumbents in
the job, and the current work experience of incumbents in similar jobs.” (Atkins
v. City of Los Angeles (2017) 8 Cal.App.5th 696, 717-718 [214 Cal.Rptr.3d
113].)
• “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.)
• “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), and to a claim for failure to
engage in the interactive process under section 12940, subdivision (n).” (Atkins,
supra, 8 Cal.App.5th at p. 717.)
FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2543
1593
Copyright Judicial Council of California
• “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.)
• “[R]equiring employers to eliminate an essential function of a job to
accommodate a disabled employee ‘would be at odds with the definition of the
employee’s prima facie case’ under FEHA. The employee’s burden includes
‘showing he or she can perform the essential functions of the job with
accommodation, not that an essential function can be eliminated altogether to
suit his or her restrictions.’ ” (Atkins, supra, 8 Cal.App.5th at p. 720.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1045-1049
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment and Housing Act (FEHA), ¶¶ 9:2247, 9:2247.1, 9:2247.2,
9:2402-9:2402.1 (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, § 41.97[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)
CACI No. 2543 FAIR EMPLOYMENT AND HOUSING ACT
1594
Copyright Judicial Council of California

© Judicial Council of California.