California Civil Jury Instructions (CACI) (2017)

2544. Disability Discrimination - Affirmative Defense—Health or Safety Risk

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2544.Disability Discrimination—Affirmative Defense—Health or
Safety Risk
[Name of defendant] claims that [his/her/its] conduct was lawful because,
even with reasonable accommodations, [name of plaintiff] was unable to
perform an essential job duty without endangering [[his/her] health or
safety] [or] [the health or safety of others]. To succeed, [name of
defendant] must prove both of the following:
1. That [describe job duty] was an essential job duty; and
2. That even with reasonable accommodations, [name of plaintiff]
could not [describe job duty] without endangering [[his/her]
health or safety] [or] [the health or safety of others] more than if
an individual without a disability performed the job duty.
[In determining whether [name of plaintiff]’s performance of the job
duty would endanger [his/her] health or safety, you must decide whether
the performance of the job duty presents an immediate and substantial
degree of risk to [him/her].]
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;
c. Whether the job duty is highly specialized.
New September 2003
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(c)–(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].)
• “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 (10th ed. 2005) Constitutional Law, §§ 936,
Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 9-C, California Fair
Employment And Housing Act (FEHA), ¶¶ 9:2298, 9:2402–9:2403, 9:2405, 9:2420
(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)