CACI No. 2547. Disability-Based Associational Discrimination - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun] based on
[his/her/nonbinary pronoun] 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;]
4. [or]
4. [[Specify other basis for associational discrimination];]
5. That [name of plaintiff] was able to perform the essential job
duties;
6. [That [name of defendant] [discharged/refused to hire/[other
adverse employment action]] [name of plaintiff];]
6. [or]
6. [That [name of defendant] subjected [name of plaintiff] to an
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adverse employment action;]
6. [or]
6. [That [name of plaintiff] was constructively discharged;]
7. 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];
8. That [name of plaintiff] was harmed; and
9. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2014; Revised May 2017, May 2020
Directions for Use
Give this instruction if plaintiff claims that the plaintiff was subjected to an adverse
employment action because of the plaintiff’s 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 versions. But the
versions are illustrative rather than exhaustive; therefore, an “other” option is
provided. (See Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2
Cal.App.5th 1028, 1042 [207 Cal.Rptr.3d 120].)
An element of a disability discrimination case is that the plaintiff must be otherwise
qualified to do the job, with or without reasonable accommodation. (Green v. State
of California (2007) 42 Cal.4th 254, 262 [64 Cal.Rptr.3d 390, 165 P.3d 118] (see
element 5).) However, the FEHA does not expressly require reasonable
accommodation for association with a disabled person. (Gov. Code, § 12940(m)
[employer must reasonably accommodate applicant or employee].) Nevertheless, one
court has suggested that such a requirement may exist, without expressly deciding
the issue. (See Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1038-1039.) A reference
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to reasonable accommodation may be added to element 5 if the court decides to
impose this requirement.
Read the first option for element 6 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 6 and also give
CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element
7 if either the second or third option is included for element 4.
Element 7 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]; Castro-Ramirez, supra, 2 Cal.App.5th at p.
1037; 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
12926(o).
• “ ‘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.)
• “We agree with Rope [supra] that Larimer [Larimer v. International Business
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Machines Corp. (7th Cir. 2004) 370 F.3d 698] provides an illustrative, rather
than an exhaustive, list of the kinds of circumstances in which we might find
associational disability discrimination. The common thread among the Larimer
categories is simply that they are instances in which the ‘employer has a motive
to discriminate against a nondisabled employee who is merely associated with a
disabled person.’ As we discuss above, this is an element of a plaintiff’s prima
facie case - that the plaintiff’s association with a disabled person was a
substantial motivating factor for the employer’s adverse employment action.
Rope held the alleged facts in that case could give rise to an inference of such
discriminatory motive. Our facts do not fit neatly within one of the Larimer
categories either, but a jury could reasonably infer the requisite discriminatory
motive.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1042, internal citation
omitted.)
• “ ‘[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.)
• “A prima facie case of disability discrimination under FEHA requires a showing
that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise
qualified to do his or her job, with or without reasonable accommodation, and
(3) the plaintiff was subjected to adverse employment action because of the
disability. Adapting this [disability discrimination] framework to the associational
discrimination context, the ‘disability’ from which the plaintiff suffers is his or
her association with a disabled person. . . . [T]he disability must be a substantial
factor motivating the employer’s adverse employment action.” (Castro-Ramirez,
supra, 2 Cal.App.5th at p. 1037.)
• “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
italics.)
• “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.)
• “[W]hen section 12940, subdivision (m) requires employers to reasonably
accommodate ‘the known physical . . . disability of an applicant or employee,’
read in conjunction with other relevant provisions, subdivision (m) may
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reasonably be interpreted to require accommodation based on the employee’s
association with a physically disabled person.” (Castro-Ramirez, supra,2
Cal.App.5th at pp. 1038-1039.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1045,
1046, 1049
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, 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)
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