CACI No. 2544. Disability Discrimination - Affirmative Defense - Health or Safety Risk
Judicial Council of California Civil Jury Instructions (2023 edition)
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2544.Disability Discrimination - Affirmative Defense - Health or
Safety Risk
[Name of defendant] claims that [his/her/nonbinary pronoun/its] conduct
was not discriminatory because, even with reasonable accommodations,
[name of plaintiff] was unable to perform at least one essential job duty
without endangering [[his/her/nonbinary pronoun] health or safety/ [or]
[the health or safety of others]. To succeed on this defense, [name of
defendant] must prove all of the following:
1. That [describe job duty] was an essential job duty;
2. That there was no reasonable accommodation that would have
allowed [name of plaintiff] to perform this job duty without
endangering [[his/her/nonbinary pronoun] health or safety/ [or]
[the health or safety of others]; and
3. That [name of plaintiff]’s performance of this job duty would
present an immediate and substantial degree of risk to [[him/her/
nonbinary pronoun]/ [or] others].
[However, it is not a defense to assert that [name of plaintiff] has a
disability with a future risk, as long as the disability does not presently
interfere with [his/her/nonbinary pronoun] ability to perform the job in a
manner that will not endanger [him/her/nonbinary pronoun]/ [or] others].]
In determining whether [name of defendant] has proved this defense,
factors that you may consider include the following:
a. The duration of the risk;
b.The nature and severity of the potential harm;
c. The likelihood that the potential harm would have occurred;
d. How imminent the potential harm was; [and]
e. Relevant information regarding [name of plaintiff]’s past work
history[;/and]
[f. [Specify other relevant factors].]
Your consideration of these factors should be based on a reasonable
medical judgment that relies on the most current medical knowledge or
on the best available objective evidence.
New September 2003; Revised May 2019, November 2019
Directions for Use
This instruction is based on the Fair Employment and Housing Council regulation
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addressing the defense of health or safety risk. (See Cal. Code Regs., tit. 2,
§ 11067.) Give CACI No. 2543, Disability Discrimination - “Essential Job Duties”
Explained, to instruct on when a job duty is essential.
If more than one essential job duty is alleged to involve a health or safety risk,
pluralize the elements accordingly.
Give the optional paragraph following the elements if there is concern about a
future risk. (See Cal. Code Regs., tit. 2, § 11067(d).)
The list of factors to be considered is not exclusive. (See Cal. Code Regs., tit. 2,
§ 11067(e).) Additional factors may be added according to the facts and
circumstances of the case.
Sources and Authority
• Risk to Health or Safety. Government Code section 12940(a)(1).
• Risk to Health or Safety. Cal. Code Regs., tit. 2, § 11067(b)-(e).
• “FEHA’s ‘danger to self’ defense has a narrow scope; an employer must offer
more than mere conclusions or speculation in order to prevail on the defense
. . . . As one court said, ‘[t]he defense requires that the employee face an
“imminent and substantial degree of risk” in performing the essential functions
of the job.’ An employer may not terminate an employee for harm that is merely
potential . . . . In addition, in cases in which the employer is able to establish
the ‘danger to self’ defense, it must also show that there are ‘no “available
reasonable means of accommodation which could, without undue hardship to
[the employer], have allowed [the plaintiff] to perform the essential job functions
. . . without danger to himself.” ’ ” (Wittkopf v. County of Los Angeles (2001)
90 Cal.App.4th 1205, 1218-1219 [109 Cal.Rptr.2d 543], internal citations
omitted.)
• “An employer may refuse to hire persons whose physical handicap prevents
them from performing their duties in a manner which does not endanger their
health. Unlike the BFOQ defense, this exception must be tailored to the
individual characteristics of each applicant . . . in relation to specific, legitimate
job requirements . . . . [Defendant’s] evidence, at best, shows a possibility
[plaintiff] might endanger his health sometime in the future. In the light of the
strong policy for providing equal employment opportunity, such conjecture will
not justify a refusal to employ a handicapped person.” (Sterling Transit Co. v.
Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798-799 [175
Cal.Rptr. 548], internal citations and footnote omitted.)
• “FEHA does not expressly address whether the act protects an employee whose
disability causes him or her to make threats against coworkers. FEHA, however,
does authorize an employer to terminate or refuse to hire an employee who
poses an actual threat of harm to others due to a disability . . . .” (Wills v.
Superior Court (2011) 195 Cal.App.4th 143, 169 [125 Cal.Rptr.3d 1] [idle
threats against coworkers do not disqualify employee from job, but rather may
provide legitimate, nondiscriminatory reason for discharging employee].)
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• “The employer has the burden of proving the defense of the threat to the health
and safety of other workers by a preponderance of the evidence.” (Raytheon Co.
v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252 [261
Cal.Rptr. 197].)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 1045-1048
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California
Fair Employment And Housing Act (FEHA), ¶¶ 9:2297, 2297.1, 9:2402, 9:2402.1
(The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.111
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, §§ 115.54, 115.104 (Matthew Bender)
California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)
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