California Civil Jury Instructions (CACI) (2017)

2547. Disability-Based Associational Discrimination—Essential Factual Elements

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2547.Disability-Based Associational Discrimination—Essential
Factual Elements
[Name of plaintiff] claims that [name of defendant] wrongfully
discriminated against [him/her] based on [his/her] association with a
disabled person. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. That [name of plaintiff] was [specify basis of association or
relationship, e.g., the brother of [name of disabled person]], who
had [a] [e.g., physical condition];
4. [That [name of disabled person]’s [e.g., physical condition] was
costly to [name of defendant] because [specify reason, e.g., [name
of disabled person] was covered under [plaintiff]’s employer-
provided health care plan];]
4. [or]
4. [That [name of defendant] feared [name of plaintiff]’s association
with [name of disabled person] because [specify, e.g., [name of
disabled person] has a disability with a genetic component and
[name of plaintiff] may develop the disability as well];]
4. [or]
4. [That [name of plaintiff] was somewhat inattentive at work
because [name of disabled person]’s [e.g., physical condition]
requires [name of plaintiff]’s attention, but not so inattentive that
to perform to [name of defendant]’s satisfaction [name of plaintiff]
would need an accommodation;]
5. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
5. [or]
5. [That [name of defendant] subjected [name of plaintiff] to an
adverse employment action;]
5. [or]
5. [That [name of plaintiff] was constructively discharged;]
6. That [name of plaintiff]’s association with [name of disabled
person] was a substantial motivating reason for [name of
defendant]’s [decision to [discharge/refuse to hire/[other adverse
employment action]] [name of plaintiff]/conduct];
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2014
Directions for Use
Give this instruction if plaintiff claims that he or she was subjected to an adverse
employment action because of his or her association with a disabled person.
Discrimination based on an employee’s association with a person who is (or is
perceived to be) disabled is an unlawful employment practice under the FEHA.
(See Gov. Code, § 12926(o).)
Select a term to use throughout to describe the source of the disabled person’s
limitations. It may be a statutory term such as “physical disability,” “mental
disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a
general term such as “condition,” “disease,” or “disorder.” Or it may be a specific
health condition such as “diabetes.”
Three versions of disability-based associational discrimination have been
recognized, called “expense,” “disability by association,” and “distraction.” (See
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635,
655–660 [163 Cal.Rptr.3d 392] [claim for “disability-based associational
discrimination” adequately pled].) Element 4 sets forth options for the three
Read the first option for element 5 if there is no dispute as to whether the
employer’s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained, if
whether there was an adverse employment action is a question of fact for the jury.
If constructive discharge is alleged, give the third option for element 5 and also
give CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in
element 6 if either the second or third option is included for element 5.
Element 6 requires that the disability be a substantial motivating reason for the
adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
If the existence of the associate’s disability is disputed, additional instructions
defining “medical condition,” “mental disability,” and “physical disability,” may be
required. (See Gov. Code, § 12926(i), (j), (m).)
Sources and Authority
• Disability Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “Medical Condition” Defined. Government Code section 12926(i).
• “Mental Disability” Defined. Government Code section 12926(j).
• “Physical Disability” Defined. Government Code section 12926(m).
• Association With Disabled Person Protected. Government Code section
• “ ‘Three types of situation are, we believe, within the intended scope of the
rarely litigated . . . association section. We’ll call them “expense,” “disability
by association,” and “distraction.” They can be illustrated as follows: an
employee is fired (or suffers some other adverse personnel action) because (1)
(“expense”) his spouse has a disability that is costly to the employer because
the spouse is covered by the company’s health plan; (2a) (“disability by
association”) the employee’s homosexual companion is infected with HIV and
the employer fears that the employee may also have become infected, through
sexual contact with the companion; (2b) (another example of disability by
association) one of the employee’s blood relatives has a disabling ailment that
has a genetic component and the employee is likely to develop the disability as
well (maybe the relative is an identical twin); (3) (“distraction”) the employee is
somewhat inattentive at work because his spouse or child has a disability that
requires his attention, yet not so inattentive that to perform to his employer’s
satisfaction he would need an accommodation, perhaps by being allowed to
work shorter hours.’ ” (Rope,supra, 220 Cal.App.4th at p. 657.)
• “ ‘[A]n employer who discriminates against an employee because of the latter’s
association with a disabled person is liable even if the motivation is purely
monetary. But if the disability plays no role in the employer’s decision . . .
then there is no disability discrimination.’ ” (Rope,supra, 220 Cal.App.4th at p.
658, original italics.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating
factor, rather than simply amotivating factor, more effectively ensures that
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability, even if other factors would have led the employer to make
the same decision at the time.” (Harris,supra, 56 Cal.4th at p. 232, original
• “We do not suggest that discrimination must be alone sufficient to bring about
an employment decision in order to constitute a substantial motivating factor.
But it is important to recognize that discrimination can be serious,
consequential, and even by itself determinative of an employment decision
without also being a ‘but for’ cause.” (Harris,supra, 56 Cal.4th at p. 229.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 936
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability
Discrimination—California Fair Employment And Housing Act (FEHA),
¶¶ 9:2213–9:2215 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
Equal Employment Opportunity Laws, § 41.32[2] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, §§ 115.14, 115.23, 115.34 (Matthew Bender)
2548–2559. Reserved for Future Use