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Age Discrimination

Age Discrimination in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction: Age discrimination is prohibited in the workplace by both federal and state laws, including the federal Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act (FEHA). Wrongful termination due to age discrimination is a serious violation of these laws and can result in legal action against employers. In this extensive overview, we will explore the legal framework surrounding age discrimination, potential legal consequences for employers, and identify problems that may arise, supported by examples and detailed reasoning.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA is California’s primary anti-discrimination law, which prohibits age discrimination against individuals aged 40 and older. It covers employers with five or more employees and applies to various aspects of employment, including hiring, firing, and promotions.

B. Federal Age Discrimination in Employment Act (ADEA): The ADEA is a federal law that prohibits age discrimination against employees who are 40 years of age or older. It applies to employers with 20 or more employees.

C. Age Discrimination: Age discrimination includes adverse employment actions taken against individuals based on their age, such as hiring, firing, layoffs, promotions, or benefits eligibility.

II. Legal Consequences:

A. Wrongful Termination Claims: Employees who believe they were wrongfully terminated due to age discrimination can bring legal claims against their employers. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, attorney’s fees, and injunctive relief.

B. Government Enforcement: The U.S. Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) can investigate age discrimination claims and take legal action against non-compliant employers.

III. Potential Problems:

A. Mixed-Motive Cases: Employers may assert that they had legitimate, non-discriminatory reasons for the termination, such as poor performance, to counter age discrimination claims. Employees must demonstrate that age was a “but-for” cause of the termination.

B. Disparate Impact: Policies or practices that appear neutral on their face but disproportionately affect older employees may lead to age discrimination claims. Employers must justify such policies if they result in adverse employment actions.

C. Direct Evidence: Age discrimination claims may be supported by direct evidence, such as discriminatory remarks or statements. Employers must be cautious about creating evidence that could be used against them in legal proceedings.

IV. Examples:

Mixed-Motive Case Example: An employer terminates an older employee, citing performance issues as the reason. The employee claims age discrimination. To successfully defend against the claim, the employer must provide evidence that the employee’s performance deficiencies were the primary reason for termination, and age played no role.
Disparate Impact Example: An employer implements a mandatory retirement policy, requiring employees to retire at age 60. This policy disproportionately affects older employees and may lead to age discrimination claims. The employer must demonstrate that the policy serves a legitimate business purpose and does not discriminate based on age.
Direct Evidence Example: An employer’s management makes derogatory comments about older employees during a meeting, stating that they are “outdated” and “slow.” An older employee who was later terminated may use these comments as direct evidence of age discrimination.

Conclusion

In conclusion, age discrimination is a serious violation of employment laws in California. Employers must ensure compliance with the FEHA and the ADEA to avoid legal consequences. To mitigate risks and maintain a discrimination-free workplace, employers should consistently apply their policies, carefully document employment decisions, and provide anti-discrimination training to employees. Employees who believe they have been wrongfully terminated due to age discrimination should consult with an attorney and gather evidence to support their claims.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2570. Age Discrimination—Disparate Treatment—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her/nonbinary pronoun] because of [his/her/ nonbinary pronoun] age. To establish this claim, [name of plaintiff] must prove all of the following:

That [name of defendant] was [an employer/[other covered entity]];
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]];
[That [name of defendant] [discharged/refused to hire/[other adverse employment action]] [name of plaintiff];]

[or]

[That [name of defendant] subjected [name of plaintiff] to an adverse employment action;]

[or]

[That [name of plaintiff] was constructively discharged;]

That [name of plaintiff] was age 40 or older at the time of the [discharge/[other adverse employment action]];
That [name of plaintiff]’s age was a substantial motivating reason for [name of defendant]’s [decision to [discharge/refuse to hire/ [other adverse employment action]] [name of plaintiff]/conduct];
That [name of plaintiff] was harmed; and
That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New June 2011; Revised June 2012, June 2013, May 2020

Directions for Use

Read the first option for element 3 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 3 and also give CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element 5 if the either the second or third option is included for element 3.

Note that there are two causation elements. There must be a causal link between the

discriminatory animus based on age and the adverse action (see element 5), and there must be a causal link between the adverse action and the damage (see element 7). (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81

Cal.Rptr.3d 406].)

Element 5 requires that age discrimination 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.)

Under the McDonnell Douglas (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668]) process for allocating burdens of proof and producing evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination. The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action. At that point, the burden shifts back to the employee to show that the employer’s stated reason was in fact a pretext for a discriminatory act.

Whether or not the employee has met the employee’s prima facie burden, and whether or not the employer has rebutted the employee’s prima facie showing, are questions of law for the trial court, not questions of fact for the jury. (See Caldwell

v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [48 Cal.Rptr.2d 448].) In other words, by the time that the case is submitted to the jury, the plaintiff has already established a prima facie case, and the employer has already proffered a legitimate, nondiscriminatory reason for the adverse employment decision. The McDonnell Douglas shifting burden drops from the case. The jury is left to decide which evidence it finds more convincing, that of the employer’s discriminatory intent or that of the employer’s age-neutral reasons for the employment decision. (See Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1118, fn. 5 [94

Cal.Rptr.2d 579]).

Under FEHA, age-discrimination cases require the employee to show that the employee’s job performance was satisfactory at the time of the adverse employment action as a part of the employee’s prima facie case (see Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321 [115 Cal.Rptr.3d 453]), even though it is the employer’s burden to produce evidence of a nondiscriminatory reason for the action. Poor job performance is the most common nondiscriminatory reason that an employer advances for the action. Even though satisfactory job performance may be an element of the employee’s prima facie case, it is not an element that the employee must prove to the trier of fact. Under element 5 and CACI No. 2507, the burden remains with the employee to ultimately prove that age discrimination was a substantial motivating reason for the action. (See Muzquiz, supra, 79 Cal.App.4th at p. 1119.)

See also the Sources and Authority to CACI No. 2500, Disparate Treatment—Essential Factual Elements.

Sources and Authority

Age Discrimination Prohibited Under Fair Employment and Housing Act. Government Code section 12940(a).
“Age” Defined. Government Code section 12926(b).
Disparate Treatment; Layoffs Based on Salary. Government Code section 12941.
“In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell, supra, 188 Cal.App.4th at p. 321.)
“In other words, ‘[b]y the time that the case is submitted to the jury, . . . the plaintiff has already established his or her prima facie case, and the employer has already proffered a legitimate, nondiscriminatory reason for the adverse employment decision, leaving only the issue of the employer’s discriminatory intent for resolution by the trier of fact. Otherwise, the case would have been disposed of as a matter of law for the trial court. That is to say, if the plaintiff cannot make out a prima facie case, the employer wins as a matter of law. If the employer cannot articulate a nondiscriminatory reason for the adverse employment decision, the plaintiff wins as a matter of law. In those instances, no fact-finding is required, and the case will never reach a jury. [¶] In short, if and when the case is submitted to the jury, the construct of the shifting burden

“drops from the case,” and the jury is left to decide which evidence it finds more convincing, that of the employer’s discriminatory intent, or that of the employer’s race or age-neutral reasons for the employment decision.’ ” (Muzquiz, supra, 79 Cal.App.4th at p. 1118, fn. 5.)

“Because the only issue properly before the trier of fact was whether the [defendant]’s adverse employment decision was motivated by discrimination on the basis of age, the shifting burdens of proof regarding appellant’s prima facie case and the issue of legitimate nondiscriminatory grounds were actually irrelevant.” (Muzquiz, supra, 79 Cal.App.4th at p. 1119.)
“An employee alleging age discrimination must ultimately prove that the adverse employment action taken was based on his or her age. Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of age discrimination cases. That system necessarily establishes the basic framework for reviewing motions for summary judgment in such cases.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002 [67 Cal.Rptr.2d 483], internal citations omitted.)
“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating 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.)
“While we agree that a plaintiff must demonstrate some basic level of competence at his or her job in order to meet the requirements of a prima facie showing, the burden-shifting framework established in McDonnell Douglas compels the conclusion that any measurement of such competency should, to the extent possible, be based on objective, rather than subjective, criteria. A plaintiff’s burden in making a prima facie case of discrimination is not intended to be ‘onerous.’ Rather, the prima facie burden exists in order to weed out patently unmeritorious claims.” (Sandell, supra, 188 Cal.App.4th at p. 322, internal citations omitted.)
“A discharge is not ‘on the ground of age’ within the meaning of this prohibition unless age is a ‘motivating factor’ in the decision. Thus, ‘ “an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision.” ’ ‘[A]n employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ ” (West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978 [117 Cal.Rptr.2d 647].)
“[D]ownsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of an age-protected worker. An employer’s freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may ‘use the occasion as a convenient opportunity to get rid of its [older] workers.’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 1041–1044

Chin et al., California Practice Guide: Employment Litigation, Ch. 8-B, California Fair Employment and Housing Act, ¶¶ 8:740, 8:800 et seq. (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2570

Equal Employment Opportunity Laws, § 41.31 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.22 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, § 100.43 (Matthew Bender)

Disability Discrimination

Disability Discrimination in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

Disability discrimination in the workplace is prohibited under various federal and state laws, including the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). This discrimination can take many forms, including wrongful termination. In this comprehensive overview, we will examine disability discrimination in the context of wrongful termination and employment law in the state of California.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA is California’s primary anti-discrimination law. It prohibits employers with five or more employees from discriminating against individuals with disabilities in all aspects of employment, including hiring, promotion, and termination.

B. Americans with Disabilities Act (ADA): The ADA is a federal law that provides additional protections against disability discrimination for employers with 15 or more employees. It closely aligns with the FEHA but applies to a larger class of employers.

C. Definitions of Disability: Both the FEHA and ADA define a disability broadly to include physical or mental impairments that substantially limit a major life activity, a history of such impairments, or being regarded as having such an impairment.

II. Legal Consequences:

A. Wrongful Termination Claims: An employee who believes they were wrongfully terminated due to disability discrimination can bring a legal claim against their employer. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Employer Liability: Employers found liable for disability discrimination may face significant financial consequences, including paying monetary damages and potentially enduring negative publicity.

C. EEOC or DFEH Charges: Employees may file charges with the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH), which can lead to investigations and potential legal actions against the employer.

III. Potential Problems:

A. Failure to Accommodate: One common problem is when an employer fails to provide reasonable accommodations to employees with disabilities. This may lead to wrongful termination claims, as an employee might be terminated for performance issues that could have been addressed through reasonable accommodations.

B. Inconsistent Treatment: Employers must ensure that they treat employees with disabilities consistently and do not single them out for adverse treatment. Inconsistencies can be used as evidence of discriminatory intent.

C. Lack of Awareness: Employers may unintentionally discriminate against disabled employees due to a lack of awareness about their legal obligations under the FEHA and ADA. This can result in wrongful termination claims when disabled employees are terminated without proper consideration of their rights.

IV. Examples:

Failure to Accommodate Example: An employee with a mobility impairment requests a reasonable accommodation, a wheelchair-accessible workspace. The employer ignores the request and subsequently terminates the employee for tardiness, as the employee struggled to navigate the inaccessible workspace. In this case, the employee may have a strong wrongful termination claim based on the employer’s failure to provide a reasonable accommodation.
Inconsistent Treatment Example: An employer routinely grants leave extensions to non-disabled employees but denies such extensions to an employee with a documented mental health disability who requests additional leave as an accommodation. If the employee is subsequently terminated for exceeding leave limits, this inconsistency could be used as evidence of disability discrimination.

Conclusion

In conclusion, disability discrimination in the context of wrongful termination in California is a serious legal matter. Employers must be aware of their obligations under the FEHA and ADA, including providing reasonable accommodations and avoiding discriminatory practices. Failure to do so can result in costly legal consequences, including potential liability for wrongful termination and other forms of discrimination. To mitigate risks, employers should educate themselves and their employees about disability rights and maintain consistent, non-discriminatory practices in the workplace.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2540. Disability Discrimination—Disparate Treatment—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her/nonbinary pronoun] based on [his/her/nonbinary pronoun] [history of [a]] [select term to describe basis of limitations, e.g., physical condition]. To establish this claim, [name of plaintiff] must prove all of the following:

That [name of defendant] was [an employer/[other covered entity]];
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]];
That [name of defendant] knew that [name of plaintiff] had [a history of having] [a] [e.g., physical condition] [that limited [insert major life activity]];
That [name of plaintiff] was able to perform the essential job duties of [his/her/nonbinary pronoun] [current position/the position for which [he/she/nonbinary pronoun] applied], either with or without reasonable accommodation for [his/her/nonbinary pronoun] [e.g., condition];
[That [name of defendant] [discharged/refused to hire/[other adverse employment action]] [name of plaintiff];]

[or]

[That [name of defendant] subjected [name of plaintiff] to an adverse employment action;]

[or]

[That [name of plaintiff] was constructively discharged;]

That [name of plaintiff]’s [history of [a]] [e.g., physical condition] was a substantial motivating reason for [name of defendant]’s [decision to [discharge/refuse to hire/[other adverse employment action]] [name of plaintiff]/conduct];
That [name of plaintiff] was harmed; and
That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

[Name of plaintiff] does not need to prove that [name of defendant] held any ill will or animosity toward [him/her/nonbinary pronoun] personally because [he/she/nonbinary pronoun] was [perceived to be] disabled. [On the other hand, if you find that [name of defendant] did hold ill will or

animosity toward [name of plaintiff] because [he/she/nonbinary pronoun] was [perceived to be] disabled, you may consider this fact, along with all the other evidence, in determining whether [name of plaintiff]’s [history of [a]] [e.g., physical condition] was a substantial motivating reason for [name of defendant]’s [decision to [discharge/refuse to hire/[other adverse employment action]] [name of plaintiff]/conduct].]

New September 2003; Revised June 2006, December 2007, April 2009, December

2009, June 2010, June 2012, June 2013, December 2014, December 2016, May

2019, May 2020

Directions for Use

Select a term to use throughout to describe the source of the plaintiff’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.”

In the introductory paragraph and in elements 3 and 6, select the bracketed language on “history” of disability if the claim of discrimination is based on a history of disability rather than a current actual disability.

For element 1, the court may need to instruct the jury on the statutory definition of “employer” under the FEHA. Other covered entities under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, § 12940(a)–(d).)

This instruction is for use by both an employee and a job applicant. Select the appropriate options in elements 2, 5, and 6 depending on the plaintiff’s status.

Modify elements 3 and 6 if the plaintiff was not actually disabled or had a history of disability, but alleges discrimination because the plaintiff was perceived to be disabled. (See Gov. Code, § 12926(o); see also Gov. Code, § 12926(j)(4), (m)(4) [mental and physical disability include being regarded or treated as disabled by the employer].) This can be done with language in element 3 that the employer “treated [name of plaintiff] as if [he/she/nonbinary pronoun] . . .” and with language in element 6 “That [name of employer]’s belief that ”

If the plaintiff alleges discrimination on the basis of the plaintiff’s association with someone who was or was perceived to be disabled, give CACI No. 2547, Disability- Based Associational Discrimination—Essential Factual Elements. (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].)

If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i)) is alleged, omit “that limited [insert major life activity]” in element 3. (Compare

Gov. Code, § 12926(i) with Gov. Code, § 12926(j), (m) [no requirement that medical condition limit major life activity].)

Regarding element 4, it is now settled that the ability to perform the essential duties of the job, with or without reasonable accommodation, is an element of the plaintiff’s burden of proof. (See Green v. State of California (2007) 42 Cal.4th 254, 257–258 [64 Cal.Rptr.3d 390, 165 P.3d 118].)

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.)

Give the optional sentence in the last paragraph if there is evidence that the defendant harbored personal animus against the plaintiff because of the plaintiff’s disability.

If the existence of a qualifying disability is disputed, additional instructions defining “physical disability,” “mental disability,” and “medical condition” 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).
Inability to Perform Essential Job Duties. Government Code section 12940(a)(1).
“Medical Condition” Defined. Government Code section 12926(i).
“Mental Disability” Defined. Government Code section 12926(j).
“Physical Disability” Defined. Government Code section 12926(m).
Perception of Disability and Association With Disabled Person Protected. Government Code section 12926(o).
“Substantial” Limitation Not Required. Government Code section 12926.1(c).
“[T]he plaintiff initially has the burden to establish a prima facie case of discrimination. The plaintiff can meet this burden by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. To establish a prima facie case,

a plaintiff must show ‘ “ ‘ “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion . . . .” ’ ” . . .’ The prima facie burden is light; the evidence necessary to sustain the burden is minimal. As noted above, while the elements of a plaintiff’s prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310 [115 Cal.Rptr.3d 453], original italics, internal citations omitted.)

“The distinction between cases involving direct evidence of the employer’s motive for the adverse employment action and cases where there is only circumstantial evidence of the employer’s discriminatory motive is critical to the outcome of this appeal. There is a vast body of case law that addresses proving discriminatory intent in cases where there was no direct evidence that the adverse employment action taken by the employer was motivated by race, religion, national origin, age or sex. In such cases, proof of discriminatory motive is governed by the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411

U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668].” (Wallace v. County of Stanislaus

(2016) 245 Cal.App.4th 109, 123 [199 Cal.Rptr.3d 462], original italics, footnote and internal citations omitted.)

“The three-stage framework and the many principles adopted to guide its application do not apply in discrimination cases where, like here, the plaintiff presents direct evidence of the employer’s motivation for the adverse employment action. In many types of discrimination cases, courts state that direct evidence of intentional discrimination is rare, but disability discrimination cases often involve direct evidence of the role of the employee’s actual or perceived disability in the employer’s decision to implement an adverse employment action. Instead of litigating the employer’s reasons for the action, the parties’ disputes in disability cases focus on whether the employee was able to perform essential job functions, whether there were reasonable accommodations that would have allowed the employee to perform those functions, and whether a reasonable accommodation would have imposed an undue hardship on the employer. To summarize, courts and practitioners should not automatically apply principles related to the McDonnell Douglas test to disability discrimination cases. Rather, they should examine the critical threshold issue and determine whether there is direct evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition.” (Wallace, supra, 245 Cal.App.4th at p. 123, original italics, footnote and internal citations omitted; cf. Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 234 fn. 3 [206 Cal.Rptr.3d 841] [case did not present so-called “typical” disability discrimination case, as described in Wallace, in that the parties disputed the employer’s reasons for terminating plaintiff’s employment].)
“If the employee meets this [prima facie] burden, it is then incumbent on the

employer to show that it had a legitimate, nondiscriminatory reason for its employment decision. When this showing is made, the burden shifts back to the employee to produce substantial evidence that employer’s given reason was either ‘untrue or pretextual,’ or that the employer acted with discriminatory animus, in order to raise an inference of discrimination.” (Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 744 [151 Cal.Rptr.3d 292], internal citations omitted.)

“Although the same statutory language that prohibits disability discrimination also prohibits discrimination based on race, age, sex, and other factors, we conclude that disability discrimination claims are fundamentally different from the discrimination claims based on the other factors listed in section 12940, subdivision (a). These differences arise because (1) additional statutory provisions apply to disability discrimination claims, (2) the Legislature made separate findings and declarations about protections given to disabled persons, and (3) discrimination cases involving race, religion, national origin, age and sex, often involve pretexts for the adverse employment action—an issue about motivation that appears less frequently in disability discrimination cases.” (Wallace, supra, 245 Cal.App.4th at p. 122.)
- “[Defendant] argues that, because [it] hired plaintiffs as recruit officers, they must show they were able to perform the essential functions of a police recruit in order to be qualified individuals entitled to protection under FEHA. [Defendant] argues that plaintiffs cannot satisfy their burden of proof under FEHA because they failed to show that they could perform those essential functions. [¶] Plaintiffs do not directly respond to [defendant]’s argument. Instead, they contend that the relevant question is whether they could perform the essential functions of the positions to which they sought reassignment. Plaintiffs’ argument improperly conflates the legal standards for their claim under section 12940, subdivision (a), for discrimination, and their claim under section

12940, subdivision (m), for failure to make reasonable accommodation, including reassignment. In connection with a discrimination claim under section 12940, subdivision (a), the court considers whether a plaintiff could perform the essential functions of the job held—or for job applicants, the job desired—with or without reasonable accommodation.” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 716–717 [214 Cal.Rptr.3d 113].)

“Summary adjudication of the section 12940(a) claim . . . turns on . . . whether [plaintiff] could perform the essential functions of the relevant job with or without accommodation. [Plaintiff] does not dispute that she was unable to perform the essential functions of her former position as a clothes fitter with or without accommodation. Under federal law, however, when an employee seeks accommodation by being reassigned to a vacant position in the company, the employee satisfies the ‘qualified individual with a disability’ requirement by showing he or she can perform the essential functions of the vacant position with or without accommodation. The position must exist and be vacant, and the employer need not promote the disabled employee. We apply the same rule here.

To prevail on summary adjudication of the section 12940(a) claim, [defendant] must show there is no triable issue of fact about [plaintiff]’s ability, with or without accommodation, to perform the essential functions of an available vacant position that would not be a promotion.” (Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 965 [83 Cal.Rptr.3d 190], original italics, internal citations omitted.)

“To establish a prima facie case of mental disability discrimination under FEHA, a plaintiff must show the following elements: (1) She suffers from a mental disability; (2) she is otherwise qualified to do the job with or without reasonable accommodation; and (3) she was subjected to an adverse employment action because of the disability.” (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84 [187 Cal.Rptr.3d 745].)
“At most, [plaintiff] alleges only that he anticipated becoming disabled for some time after the organ donation. This is insufficient. [Plaintiff] cannot pursue a cause of action for discrimination under FEHA on the basis of his ‘actual’ physical disability in the absence of factual allegations that he was in fact, physically disabled.” (Rope, supra, 220 Cal.App.4th at p. 659.)
“[Defendant] asserts the statute’s ‘regarded as’ protection is limited to persons who are denied or who lose jobs based on an employer’s reliance on the ‘myths, fears or stereotypes’ frequently associated with disabilities…………………………………………………………………….. However, the

statutory language does not expressly restrict FEHA’s protections to the narrow class to whom [defendant] would limit its coverage. To impose such a restriction would exclude from protection a large group of individuals, like [plaintiff], with more mundane long-term medical conditions, the significance of which is exacerbated by an employer’s failure to reasonably accommodate. Both the policy and language of the statute offer protection to a person who is not actually disabled, but is wrongly perceived to be. The statute’s plain language leads to the conclusion that the ‘regarded as’ definition casts a broader net and protects any individual ‘regarded’ or ‘treated’ by an employer ‘as having, or having had, any physical condition that makes achievement of a major life activity difficult’ or may do so in the future. We agree most individuals who sue exclusively under this definitional prong likely are and will continue to be victims of an employer’s ‘mistaken’ perception, based on an unfounded fear or stereotypical assumption. Nevertheless, FEHA’s protection is nowhere expressly premised on such a factual showing, and we decline the invitation to import such a requirement.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 53 [43 Cal.Rptr.3d 874], original italics, internal citations omitted.)

“[T]he purpose of the ‘regarded-as’ prong is to protect individuals rejected from a job because of the ‘myths, fears and stereotypes’ associated with disabilities. In other words, to find a perceived disability, the perception must stem from a false idea about the existence of or the limiting effect of a disability.” (Diffey v. Riverside County Sheriff’s Dept. (2000) 84 Cal.App.4th 1031, 1037 [101 Cal.Rptr.2d 353], internal citation omitted.)
“We say on this record that [defendant] took action against [plaintiff] based on

concerns or fear about his possible future disability. The relevant FEHA definition of an individual regarded as disabled applies only to those who suffer certain specified physical disabilities or those who have a condition with ‘no present disabling effect’ but which ‘may become a physical disability ’

According to the pleadings, [defendant] fired [plaintiff] to avoid accommodating him because of his association with his physically disabled sister. That is not a basis for liability under the ‘regarded as’ disabled standard.” (Rope, supra, 220 Cal.App.4th at p. 659, internal citations omitted.)

“ ‘[A]n employer “knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. The employer need only know the underlying facts, not the legal significance of

those facts.” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 592 [210 Cal.Rptr.3d 59].)

“ ‘An adverse employment decision cannot be made “because of” a disability, when the disability is not known to the employer. Thus, in order to prove [a discrimination] claim, a plaintiff must prove the employer had knowledge of the employee’s disability when the adverse employment decision was made. . . . While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. “Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations . . . .”…………………………………… ’ ” (Scotch v. Art Institute of

California (2009) 173 Cal.App.4th 986, 1008 [93 Cal.Rptr.3d 338].)

“[W]e interpret FEHA as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers. If employers are not permitted to make this distinction, they are caught on the horns of a dilemma. They may not discriminate against an employee based on a disability but, at the same time, must provide all employees with a safe work environment free from threats and violence.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 166 [125 Cal.Rptr.3d 1], internal citations omitted.)
- “Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating 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.)

“We note that the court in Harris discussed the employer’s motivation and the link between the employer’s consideration of the plaintiff’s physical condition and the adverse employment action without using the terms ‘animus,’ ‘animosity,’ or ‘ill will.’ The absence of a discussion of these terms necessarily implies an employer can violate section 12940, subdivision (a) by taking an adverse employment action against an employee “because of” the employee’s physical disability even if the employer harbored no animosity or ill will against the employee or the class of persons with that disability.” (Wallace, supra, 245 Cal.App.4th at p. 128.)
Based on Harris, we conclude that an employer has treated an employee differently ‘because of’ a disability when the disability is a substantial motivating reason for the employer’s decision to subject the [employee] to an adverse employment action. This conclusion resolves how the jury should have been instructed on [defendant]’s motivation or intent in connection with the disability discrimination claim.” (Wallace, supra, 245 Cal.App.4th at p. 128.)
“We conclude that where, as here, an employee is found to be able to safely perform the essential duties of the job, a plaintiff alleging disability discrimination can establish the requisite employer intent to discriminate by proving (1) the employer knew that plaintiff had a physical condition that limited a major life activity, or perceived him to have such a condition, and (2) the plaintiff’s actual or perceived physical condition was a substantial motivating reason for the defendant’s decision to subject the plaintiff to an adverse employment action…….. [T]his conclusion is based on (1) the interpretation of

section 12940’s term ‘because of’ adopted in Harris; (2) our discussion of the meaning of the statutory phrase ‘to discriminate against’; and (3) the guidance provided by the current versions of CACI Nos. 2540 and 2507. [¶] Therefore, the jury instruction that [plaintiff] was required to prove that [defendant] ‘regarded or treated [him] as having a disability in order to discriminate’ was erroneous.” (Wallace, supra, 245 Cal.App.4th at p. 129.)

“The word ‘animus’ is ambiguous because it can be interpreted narrowly to mean ‘ill will’ or ‘animosity’ or can be interpreted broadly to mean ‘intention.’ In this case, it appears [defendant] uses ‘animus’ to mean something more than the intent described by the substantial-motivating-reason test adopted in Harris.” (Wallace, supra, 245 Cal.App.4th at p. 130, fn. 14, internal citation omitted.)
“ ‘[W]eight may qualify as a protected “handicap” or “disability” within the meaning of the FEHA if medical evidence demonstrates that it results from a physiological condition affecting one or more of the basic bodily systems and limits a major life activity.’ ‘[A]n individual who asserts a violation of the

FEHA on the basis of his or her weight must adduce evidence of a physiological, systemic basis for the condition.’ ” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 928 [227 Cal.Rptr.3d 286].)

“Being unable to work during pregnancy is a disability for the purposes of

section 12940.” (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340

[153 Cal.Rptr.3d 367].)

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), ¶¶ 9:2160–9:2241 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.78–2.80

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.32[2][c] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.14, 115.23, 115.34, 115.77[3][a] (Matthew Bender)

California Civil Practice: Employment Litigation § 2:46 (Thomson Reuters)

Disability Discrimination- defense – Essential Job Duties

Essential Job Duties , Disability Discrimination

Essential Job Duties and Disabilities in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

Understanding the concept of essential job duties in the context of disabilities is crucial for employers and employees in California. Employers have a legal obligation to reasonably accommodate employees with disabilities, but there are limitations based on the essential functions of the job. Failure to navigate this complex area of employment law can lead to discrimination claims, including wrongful termination. In this comprehensive overview, we will explore the legal framework surrounding essential job duties, potential legal consequences for employers, and identify problems that may arise, supported by examples and detailed reasoning.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits disability discrimination and requires employers with five or more employees to provide reasonable accommodations to qualified individuals with disabilities. However, it recognizes that accommodations are not required if they would impose an undue hardship or fundamentally alter the nature of the job.

B. Americans with Disabilities Act (ADA): The ADA is a federal law that also mandates reasonable accommodations for qualified individuals with disabilities but applies to employers with 15 or more employees. It shares the concept of essential job functions with the FEHA.

C. Essential Job Functions: Essential job functions refer to the fundamental duties of a job that an employee must be able to perform with or without reasonable accommodation. Identifying these functions is critical in determining whether an accommodation is required or if an undue hardship exists.

II. Legal Consequences:

A. Wrongful Termination Claims: Employees who believe they were wrongfully terminated due to disability discrimination can bring legal claims against their employers. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Legal Defense: Employers can defend themselves against wrongful termination claims by demonstrating that the terminated employee could not perform the essential job functions even with reasonable accommodation.

III. Potential Problems:

A. Identifying Essential Job Functions: Employers and employees may disagree on what constitutes an essential job function. This can lead to disputes and legal challenges when determining whether an accommodation is required or reasonable.

B. Inconsistent Enforcement: Employers must consistently apply their policies regarding essential job functions. Inconsistencies can be used as evidence of discriminatory intent.

C. Unwarranted Assumptions: Employers may make assumptions about an employee’s ability to perform essential job functions based on their disability. These assumptions can lead to wrongful termination claims if not supported by concrete evidence.

IV. Examples:

Identifying Essential Job Functions Example: A paralegal in a law firm is required to draft legal documents and communicate with clients and attorneys. The employer argues that drafting documents is an essential job function, and a paralegal with a severe writing disability is terminated because they cannot perform this task. However, if the paralegal can demonstrate that they can communicate effectively with clients and attorneys through other means (e.g., dictation software), they may have a strong wrongful termination claim.
Inconsistent Enforcement Example: An employer grants telecommuting as a reasonable accommodation for one employee with a mobility impairment but denies the same request for another employee with a similar impairment. This inconsistency can lead to legal challenges, as both employees are requesting the same accommodation for the same reason.

Conclusion

In conclusion, understanding essential job duties in the context of disabilities is essential for employers and employees in California. While employers have a duty to reasonably accommodate disabled employees, they are not required to do so if it would fundamentally alter the job or impose undue hardship. To mitigate risks and ensure compliance with the law, employers should have clear job descriptions that identify essential job functions, consistently apply their policies, and engage in the interactive process with employees to determine appropriate accommodations when necessary.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

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:

Whether the reason the job exists is to perform that duty;
Whether there is a limited number of employees available who can perform that duty;
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:

[Name of defendant]’s judgment as to which functions are essential;
Written job descriptions prepared before advertising or interviewing applicants for the job;
The amount of time spent on the job performing the duty;
The consequences of not requiring the person currently holding the position to perform the duty;
The terms of a collective bargaining agreement;
The work experiences of past persons holding the job;
The current work experience of persons holding similar jobs;
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,

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.)

“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)

Discrimination re Religion

Religion- Failure to Accommodate

Failure to Accommodate Religion in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

In California, as in the rest of the United States, employers are legally obligated to reasonably accommodate employees’ religious beliefs and practices unless doing so would impose an undue hardship on the business. Failure to provide such accommodations can lead to religious discrimination claims, including wrongful termination.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits religious discrimination and requires employers with five or more employees to reasonably accommodate employees’ religious beliefs and practices, provided that doing so does not create undue hardship for the employer.

B. Title VII of the Civil Rights Act of 1964: Title VII is a federal law that prohibits religious discrimination in employment. It requires employers with 15 or more employees to provide reasonable accommodations for employees’ religious observances and beliefs.

C. Reasonable Accommodation:

Reasonable accommodation in the context of religion may include adjustments to work schedules, dress codes, and job duties to accommodate religious practices and beliefs.

II. Legal Consequences:

A. Wrongful Termination Claims: Employees who believe they were wrongfully terminated due to a failure to accommodate their religious beliefs can bring legal claims against their employers. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Government Enforcement: Regulatory agencies like the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) can investigate claims of religious discrimination and take legal action against non-compliant employers.

III. Potential Problems:

A. Undue Hardship Assessment: Determining what constitutes undue hardship can be challenging. Employers and employees may have differing opinions on whether a requested accommodation creates an undue hardship, leading to disputes and legal challenges.

B. Inconsistent Treatment: Employers must consistently apply their policies regarding religious accommodations. Inconsistencies can be used as evidence of discriminatory intent.

C. Religious Belief Authentication: Employers should be cautious when evaluating the sincerity of an employee’s religious beliefs. Making judgments about the authenticity of religious beliefs can lead to legal disputes.

IV. Examples:

Undue Hardship Assessment Example: An employee who practices the Sabbath on Saturdays requests that their work schedule be adjusted to accommodate their religious observance. The employer argues that this would create an undue hardship because it disrupts the workflow. If the employer can provide evidence that accommodating this request would indeed impose significant operational difficulties, they may have a valid defense against providing this accommodation.
Inconsistent Treatment Example: An employer allows one employee to wear religious headwear but refuses a similar request from another employee. This inconsistency can lead to legal challenges, as both employees are requesting religious accommodations.
Religious Belief Authentication Example: An employee requests time off to participate in a religious pilgrimage. The employer questions the sincerity of the employee’s religious beliefs and denies the request. If the employee can demonstrate a genuine religious belief and practice, the employer’s refusal may be seen as discrimination.

Conclusion

In conclusion, understanding the requirements of accommodating religious beliefs and practices is essential for employers and employees in California. Employers have a duty to accommodate employees’ religious beliefs unless it would result in undue hardship. To mitigate risks and ensure compliance with the law, employers should carefully assess each accommodation request, consistently apply their policies, and refrain from making judgments about the sincerity of religious beliefs to avoid potential legal consequences and disputes.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2560. Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements (Gov. Code,§ 12940(l))

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her/nonbinary pronoun] by failing to reasonably accommodate

religious [belief/ observance]. To establish this claim, [name of plaintiff] must prove all of the following:

That [name of defendant] was [an employer/[other covered entity]];
That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/[other covered relationship to defendant]];
That [name of plaintiff] has a sincerely held religious belief that [describe religious belief, observance, or practice];
That [name of plaintiff]’s religious [belief/observance] conflicted with a job requirement;
That [name of defendant] knew of the conflict between [name of plaintiff]’s religious [belief/observance] and the job requirement;
[That [name of defendant] did not explore available reasonable alternatives of accommodating [name of plaintiff], including excusing [name of plaintiff] from duties that conflict with [name of plaintiff]’s religious [belief/observance] or permitting those duties to be performed at another time or by another person, or otherwise reasonably accommodate [name of plaintiff]’s religious [belief/observance];]

[or]

[That [name of defendant] [terminated/refused to hire] [name of plaintiff] in order to avoid having to accommodate [name of plaintiff]’s religious [belief/observance];]

That [name of plaintiff]’s failure to comply with the conflicting job requirement was a substantial motivating reason for

[[name of defendant]’s decision to [discharge/refuse to hire/[specify other adverse employment action]] [name of plaintiff];]

[or]

[[name of defendant]’s subjecting [him/her/nonbinary pronoun] to an adverse employment action;]

[or]

[[his/her/nonbinary pronoun] constructive discharge;]

That [name of plaintiff] was harmed; and
That [name of defendant]’s failure to reasonably accommodate [name of plaintiff]’s religious [belief/observance] was a substantial factor in causing [his/her/nonbinary pronoun] harm.

A reasonable accommodation is one that eliminates the conflict between the religious practice and the job requirement.

If more than one accommodation is reasonable, an employer satisfies its obligation to make a reasonable accommodation if it selects one of those accommodations in good faith.

New September 2003; Revised June 2012, December 2012, June 2013, November

2019, May 2020

Directions for Use

If element 1 is given, the court may need to instruct the jury on the statutory definition of “employer” under the FEHA. Other covered entities under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, § 12940(a)–(d).)

Regulations provide that refusing to hire an applicant or terminating an employee in order to avoid the need to accommodate a religious practice constitutes religious creed discrimination. (Cal. Code Regs., tit. 2, § 11062.) Give the second option for element 6 if the plaintiff claims that the employer terminated or refused to hire the plaintiff to avoid a need for accommodation.

Element 7 requires that the plaintiff’s failure to comply with the conflicting job requirement be a substantial motivating reason for the employer’s 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.) Read the first option 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 7 and also give CACI No.

2510, “Constructive Discharge” Explained.

Federal courts construing Title VII of the Civil Rights Act of 1964 have held that the threat of an adverse employment action is a violation if the employee acquiesces to the threat and foregoes religious observance. (See, e.g., EEOC v. Townley Engineering & Mfg. Co. (9th Cir.1988) 859 F.2d 610, 614 fn. 5.) While no case has been found that construes the FEHA similarly, element 7 may be modified if the court agrees that this rule applies. In the first option, replace “decision to” with “threat to.” Or in the second option, “subjecting [name of plaintiff] to” may be replaced with “threatening [name of plaintiff] with.”

Sources and Authority

Religious Accommodation Required Under Fair Employment and Housing Act. Government Code section 12940(l).
Scope of Religious Protection. Government Code section 12926(p).
Scope of Religious Protection. Cal. Code Regs., tit. 2, § 11060(b).
Reasonable Accommodation and Undue Hardship. Cal. Code Regs., tit. 2,

§ 11062.

“In evaluating an argument the employer failed to accommodate an employee’s religious beliefs, the employee must establish a prima facie case that he or she had a bona fide religious belief, of which the employer was aware, that conflicts with an employment requirement . . . . Once the employee establishes a prima facie case, then the employer must establish it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370

[58 Cal.Rptr.2d 747], internal citation omitted.)

“Any reasonable accommodation is sufficient to meet an employer’s obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee. The reasonableness of the employer’s efforts to accommodate is determined on a case by case basis . . . . ‘[O]nce it is determined that the employer has offered a reasonable accommodation, the employer need not show that each of the employee’s proposed accommodations would result in undue hardship.’ ‘[W]here the employer has already reasonably accommodated the employee’s religious needs, the . . . inquiry [ends].’ ” (Soldinger, supra, 51 Cal.App.4th at p. 370, internal citations omitted.)
“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating 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

“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 (11th ed. 2017) Constitutional Law, §§ 967, 1028, 1052, 1054

Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:151, 7:215, 7:305, 7:610–7:611,

7:631–7:634, 7:641 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.52[3] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.22, 115.35[d], 115.91 (Matthew Bender)

California Civil Practice: Employment Litigation §§ 2:71–2:73 (Thomson Reuters) 1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996) Religion, pp. 219–224, 226–227; id. (2000 supp.) at pp. 100–101

Disability Discrimination- Reasonable Accomodations

Reasonable Accommodations for Disability

Reasonable Accommodation for Disability to Avoid Discrimination in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

In California, as in the rest of the United States, laws such as the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) require employers to provide reasonable accommodations to employees with disabilities. The purpose of these accommodations is to ensure that employees with disabilities have equal opportunities in the workplace. Failure to provide reasonable accommodation can lead to discrimination claims, including wrongful termination.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits disability discrimination and requires employers with five or more employees to provide reasonable accommodations to qualified individuals with disabilities. This includes accommodations for the application process, the job itself, and other employment-related activities.

B. Americans with Disabilities Act (ADA): The ADA is a federal law that applies to employers with 15 or more employees. It also mandates reasonable accommodations for qualified individuals with disabilities. In many cases, ADA requirements closely align with those of the FEHA.

C. Reasonable Accommodation: Reasonable accommodation refers to modifications or adjustments that allow employees with disabilities to perform their job duties effectively. Accommodations can include changes to work hours, job duties, workspace, or providing assistive technology.

II. Legal Consequences:

A. Wrongful Termination Claims: An employee who believes they were wrongfully terminated due to a failure to provide reasonable accommodation can bring a legal claim against their employer. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Government Enforcement: Regulatory agencies like the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) can investigate claims of failure to provide reasonable accommodations and take legal action against non-compliant employers.

III. Potential Problems:

A. Failure to Engage in the Interactive Process: One common problem is when employers fail to engage in the “interactive process” with the employee to identify appropriate accommodations. Employers must communicate with the employee to determine what accommodations are needed and feasible.

B. Undue Hardship: Employers can deny accommodation requests if they can prove that providing the accommodation would impose an “undue hardship” on the business. This determination can be complex and must be made on a case-by-case basis.

C. Inconsistent Application: Employers must consistently apply their accommodation policies and not treat employees with disabilities differently. Inconsistencies can be used as evidence of discriminatory intent.

IV. Examples:

Failure to Engage in the Interactive Process Example: An employee with a visual impairment requests a screen reader software as an accommodation to perform their job tasks. Instead of engaging in a discussion to determine the feasibility and specifics of the request, the employer immediately terminates the employee. In this case, the employer’s failure to engage in the interactive process may lead to a strong wrongful termination claim.
Undue Hardship Example: An employer with a small business denies an employee’s request for a full-time telecommuting accommodation due to their mobility impairment. The employer can demonstrate that allowing full-time telecommuting would create an undue hardship because the employee’s job requires daily in-person meetings. In this scenario, the employer may be justified in denying the accommodation.

Conclusion

In conclusion, providing reasonable accommodation for disabilities is a legal obligation for employers in California. Failure to do so can result in significant legal consequences, including wrongful termination claims and government enforcement actions. To avoid these risks, employers should be proactive in engaging in the interactive process, consider each accommodation request individually, and ensure consistent application of their accommodation policies while being mindful of their obligations under the FEHA and ADA.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2541. Disability Discrimination—Reasonable Accommodation—Essential Factual Elements (Gov. Code,§ 12940(m))

[Name of plaintiff] claims that [name of defendant] failed to reasonably accommodate [his/her/nonbinary pronoun] [select term to describe basis of limitations, e.g., physical condition]. To establish this claim, [name of plaintiff] must prove all of the following:

That [name of defendant] was [an employer/[other covered entity]];
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]];
That [[name of plaintiff] had/[name of defendant] treated [name of plaintiff] as if [he/she/nonbinary pronoun] had] [a] [e.g., physical condition] [that limited [insert major life activity]];

[4. That [name of defendant] knew of [name of plaintiff]’s [e.g., physical condition] [that limited [insert major life activity]];]

That [name of plaintiff] was able to perform the essential duties of [[his/her/nonbinary pronoun] current position or a vacant alternative position to which [he/she/nonbinary pronoun] could have been reassigned/the position for which [he/she/nonbinary pronoun] applied] with reasonable accommodation for [his/her/ nonbinary pronoun] [e.g., physical condition];
That [name of defendant] failed to provide reasonable accommodation for [name of plaintiff]’s [e.g., physical condition];
That [name of plaintiff] was harmed; and
That [name of defendant]’s failure to provide reasonable accommodation was a substantial factor in causing [name of plaintiff]’s harm.

[In determining whether [name of plaintiff]’s [e.g., physical condition] limits [insert major life activity], you must consider the [e.g., physical condition] [in its unmedicated state/without assistive devices/[describe mitigating measures]].]

New September 2003; Revised April 2007, December 2007, April 2009, December

2009, June 2010, December 2011, June 2012, June 2013, May 2019

Directions for Use

Select a term to use throughout to describe the source of the plaintiff’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.”

This instruction is for use by both an employee and a job applicant. Select the appropriate options in elements 2 and 5 depending on the plaintiff’s status.

If medical-condition discrimination as defined by statute (see Gov. Code, § 12926(i)) is alleged, omit “that limited [insert major life activity]” in elements 3 and 4 and do not include the last paragraph. (Compare Gov. Code, § 12926(i) with Gov. Code,

§ 12926(j), (m) [no requirement that medical condition limit major life activity].)

In a case of perceived disability, include “[name of defendant] treated [name of plaintiff] as if [he/she/nonbinary pronoun] had” in element 3, and delete optional element 4. (See Gov. Code, § 12926(j)(4), (m)(4) [mental and physical disability include being regarded or treated as disabled by the employer].) In a case of actual disability, include “[name of plaintiff] had” in element 3, and give element 4.

The California Supreme Court has held that under Government Code section 12940(a), the plaintiff is required to prove that the plaintiff has the ability to perform the essential duties of the job with or without reasonable accommodation. (See Green v. State of California (2007) 42 Cal.4th 254, 260 [64 Cal.Rptr.3d 390, 165 P.3d 118].) While the court left open the question of whether the same rule should apply to cases under Government Code section 12940(m) (see id. at p. 265), appellate courts have subsequently placed the burden on the employee to prove that the employee would be able to perform the job duties with reasonable accommodation (see element 5). (See Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766 [123 Cal.Rptr.3d 562]; Nadaf-Rahrov v. The Neiman Marcus

Group, Inc. (2008) 166 Cal.App.4th 952, 973–979 [83 Cal.Rptr.3d 190].)

There may still be an unresolved issue if the employee claims that the employer failed to provide the employee with other suitable job positions that the employee might be able to perform with reasonable accommodation. The rule has been that the employer has an affirmative duty to make known to the employee other suitable job opportunities and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–951

[62 Cal.Rptr.2d 142]; see also Furtado v. State Personnel Bd. (2013) 212

Cal.App.4th 729, 745 [151 Cal.Rptr.3d 292]; Claudio v. Regents of the University of

California (2005) 134 Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837]; Hanson v. Lucky

Stores (1999) 74 Cal.App.4th 215, 226 [87 Cal.Rptr.2d 487].) In contrast, other courts have said that it is the employee’s burden to prove that a reasonable accommodation could have been made, i.e., that the employee was qualified for a position in light of the potential accommodation. (See Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 978; see also Cuiellette, supra, 194 Cal.App.4th at p. 767 [plaintiff proves the plaintiff is a qualified individual by establishing that the plaintiff can perform the essential functions of the position to which reassignment is sought].) The question of whether the employee has to present evidence of other suitable job descriptions and prove that a vacancy existed for a position that the employee could do with reasonable accommodation may not be fully resolved.

No element has been included that requires the plaintiff to specifically request reasonable accommodation. Unlike Government Code section 12940(n) on the interactive process (see CACI No. 2546, Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process), section 12940(m) does not specifically require that the employee request reasonable accommodation; it requires only that the employer know of the disability. (See Prilliman, supra, 53 Cal.App.4th at pp. 950–951.)

Sources and Authority

Reasonable Accommodation Required. Government Code section 12940(m).
“Reasonable Accommodation” Explained. Government Code section 12926(p).
“Medical Condition” Defined. Government Code section 12926(i).
“Mental Disability” Defined. Government Code section 12926(j).
“Physical Disability” Defined. Government Code section 12926(m).
“Substantial” Limitation Not Required. Government Code section 12926.1(c).
“There are three elements to a failure to accommodate action: ‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]’ ” (Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193–1194 [232 Cal.Rptr.3d 349].)
“Under the FEHA, ‘reasonable accommodation’ means ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’ ” (Cuiellette, supra, 194 Cal.App.4th at p. 766.)
“Reasonable accommodations include ‘[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . and other similar accommodations for individuals with disabilities.’ ” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969 [181 Cal.Rptr.3d 553], original italics.)
“The examples of reasonable accommodations in the relevant statutes and regulations include reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether. FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375 [184

Cal.Rptr.3d 9].)

“A term of leave from work can be a reasonable accommodation under FEHA, and, therefore, a request for leave can be considered to be a request for accommodation under FEHA.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243 [206 Cal.Rptr.3d 841], internal citation omitted.)
- “Failure to accommodate claims are not subject to the McDonnell Douglas burden-shifting framework.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926 [227 Cal.Rptr.3d 286].)
- “The question now arises whether it is the employees’ burden to prove that a reasonable accommodation could have been made, i.e., that they were qualified for a position in light of the potential accommodation, or the employers’ burden to prove that no reasonable accommodation was available, i.e., that the employees were not qualified for any position because no reasonable accommodation was available. [¶¶] Applying Green’s burden of proof analysis to section 12940(m), we conclude that the burden of proving ability to perform the essential functions of a job with accommodation should be placed on the plaintiff under this statute as well. First, . . . an employee’s ability to perform the essential functions of a job is a prerequisite to liability under section 12940(m). Second, the Legislature modeled section 12940(m) on the federal reasonable accommodation requirement (adopting almost verbatim the federal statutory definition of ‘reasonable accommodation’ by way of example). Had the Legislature intended the employer to bear the burden of proving ability to perform the essential functions of the job, contrary to the federal allocation of the burden of proof, . . . it could have expressly provided for that result, but it did not. Finally, general evidentiary principles support allocating the burden of proof on this issue to the plaintiff.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 977–978, internal citations omitted.)
- “ ‘If the employee cannot be accommodated in his or her existing position and the requested accommodation is reassignment, an employer must make affirmative efforts to determine whether a position is available. [Citation.] A reassignment, however, is not required if “there is no vacant position for which the employee is qualified.” [Citations.] “The responsibility to reassign a disabled employee who cannot otherwise be accommodated does ‘not require creating a new job, moving another employee, promoting the disabled employee or violating another employee’s rights ” ’ [Citations.] “What is required is the

‘duty to reassign a disabled employee if an already funded, vacant position at the

same level exists.’ [Citations.]” [Citations.]’ ” (Furtado, supra, 212 Cal.App.4th at p. 745.)

“[A]n employee’s probationary status does not, in and of itself, deprive an employee of the protections of FEHA, including a reasonable reassignment. The statute does not distinguish between the types of reasonable accommodations an employer may have to provide to employees on probation or in training and those an employer may have to provide to other employees. We decline to read into FEHA a limitation on an employee’s eligibility for reassignment based on an employee’s training or probationary status. Instead, the trier of fact should consider whether an employee is on probation or in training in determining whether a particular reassignment is comparable in pay and status to the employee’s original position.” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 724 [214 Cal.Rptr.3d 113], internal citations omitted.)
“[A] disabled employee seeking reassignment to a vacant position ‘is entitled to preferential consideration.’ ” (Swanson, supra, 232 Cal.App.4th at p. 970.)
“ ‘Generally, “ ‘[t]he employee bears the burden of giving the employer notice of the disability.’ ” ’ An employer, in other words, has no affirmative duty to investigate whether an employee’s illness might qualify as a disability. ‘ “ ‘[T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge.’ ” ’ ” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1167 [217 Cal.Rptr.3d 258], internal citations omitted.)
“ ‘[A]n employer “knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by

observation.” ’ . . . [¶] ‘While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. “Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].” ’ ” (Featherstone, supra, 10 Cal.App.5th at p. 1167, internal citations omitted.)

“In other words, so long as the employer is aware of the employee’s condition, there is no requirement that the employer be aware that the condition is considered a disability under the FEHA. By the same token, it is insufficient to tell the employer merely that one is disabled or requires an accommodation.” (Cornell, supra, 18 Cal.App.5th at p. 938, internal citation omitted.)
“ ‘ “ ‘This notice then triggers the employer’s burden to take “positive steps” to accommodate the employee’s limitations. . . . [¶] . . . The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining [his or her] disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and

shares information to achieve the best match between the [employee’s] capabilities and available positions.’ ” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 598 [210 Cal.Rptr.3d 59].)

“Employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an ‘undue hardship.’ ” (Prilliman, supra, 53 Cal.App.4th at p. 947.)
- “ ‘Ordinarily, the reasonableness of an accommodation is an issue for the jury.’ ” (Prilliman, supra, 53 Cal.App.4th at p. 954, internal citation omitted.)
- “[T]he duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA.” (Bagatti, supra, 97 Cal.App.4th at p. 362.)
- “[A]n employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would impose an ‘undue hardship’ on its operations………………………………………………………………………….. ” (Atkins,

supra, 8 Cal.App.5th at p. 721.)

“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) ” (Atkins, supra, 8

Cal.App.5th at p. 717.)

“On these issues, which are novel to California and on which the federal courts are divided, we conclude that employers must reasonably accommodate individuals falling within any of FEHA’s statutorily defined ‘disabilities,’ including those ‘regarded as’ disabled, and must engage in an informal, interactive process to determine any effective accommodations.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 55 [43 Cal.Rptr.3d 874].)
- “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Moore, supra, 248 Cal.App.4th at p. 242.)
- “[A] pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Moore, supra, 248 Cal.App.4th at p. 244.)
- “Appellant also stated a viable claim under section 12940, subdivision (m), which mandates that an employer provide reasonable accommodations for the known physical disability of an employee. She alleged that she was unable to work during her pregnancy, that she was denied reasonable accommodations for her pregnancy-related disability and terminated, and that the requested accommodations would not have imposed an undue hardship on [defendant]. A finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA.” (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1341 [153 Cal.Rptr.3d 367].)

“To the extent [plaintiff] claims the [defendant] had a duty to await a vacant position to arise, he is incorrect. A finite leave of absence may be a reasonable accommodation to allow an employee time to recover, but FEHA does not require the employer to provide an indefinite leave of absence to await possible future vacancies.” (Nealy, supra, 234 Cal.App.4th at pp. 377–378.)
“While ‘a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform . . . her duties’, a finite leave is not a reasonable accommodation when the leave leads directly to termination of employment because the employee’s performance could not be evaluated while she was on the leave.” (Hernandez, supra, 22 Cal.App.5th at p. 1194.)

Secondary Sources

10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 977

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA), ¶¶ 9:2250–9:2285, 9:2345–9:2347 (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, §§ 41.32[2][c], 41.51[3] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.22, 115.35, 115.92 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:50 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2542. Disability Discrimination—“Reasonable Accommodation” Explained

A reasonable accommodation is a reasonable change to the workplace that [choose one or more of the following]

[gives a qualified applicant with a disability an equal opportunity in the job application process;]

[allows an employee with a disability to perform the essential duties of the job;] [or]

[allows an employee with a disability to enjoy the same benefits and privileges of employment that are available to employees without disabilities.]

Reasonable accommodations may include the following:

Making the workplace readily accessible to and usable by employees with disabilities;
Changing job responsibilities or work schedules;
Reassigning the employee to a vacant position;
Modifying or providing equipment or devices;
Modifying tests or training materials;
Providing qualified interpreters or readers; or
Providing other similar accommodations for an individual with a disability.

If more than one accommodation is reasonable, an employer makes a reasonable accommodation if it selects one of those accommodations in good faith.

New September 2003; Revised April 2009, June 2012

Directions for Use

Give this instruction to explain “reasonable accommodation” as used in CACI No. 2541, Disability Discrimination—Reasonable Accommodation—Essential Factual Elements. For discussion regarding the burden of proof on reasonable accommodation, see the Directions for Use to CACI No. 2541.

Sources and Authority

Employer Obligation to Make Reasonable Accommodation. Government Code section 12940(m).
“Reasonable Accommodation” Defined. Government Code section 12926(p).

“Reasonable Accommodation” Defined. Cal. Code Regs., tit. 2, § 11068(a).
“Substantial” Limitation Not Required. Government Code section 12926.1(c).
“[T]he duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA.” (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 362 [118

Cal.Rptr.2d 443].)

“[A]n employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees.” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–951 [62 Cal.Rptr.2d 142].)
“The question now arises whether it is the employees’ burden to prove that a reasonable accommodation could have been made, i.e., that they were qualified for a position in light of the potential accommodation, or the employers’ burden to prove that no reasonable accommodation was available, i.e., that the employees were not qualified for any position because no reasonable accommodation was available. [¶¶] Applying Green’s burden of proof analysis to section 12940(m), we conclude that the burden of proving ability to perform the essential functions of a job with accommodation should be placed on the plaintiff under this statute as well.” (Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977–978 [83 Cal.Rptr.3d 190], internal citations omitted.)
“Under the FEHA . . . an employer is relieved of the duty to reassign a disabled employee whose limitations cannot be reasonably accommodated in his or her current job only if reassignment would impose an ‘undue hardship’ on its operations or if there is no vacant position for which the employee is qualified.” (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 [96 Cal.Rptr.2d

236].)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶ 7:213 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA), ¶¶ 9:2091, 9:2093–9:2095, 9:2197, 9:2252, 9:2265, 9:2366 (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, § 41.51[3][a], [b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment

Discrimination, § 115.35 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:50 (Thomson Reuters)

Defenses to Reasonable Accommodations, Disability Discrimination

Defenses to Reasonable Accommodation for Disabilities in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

In California, employers are legally obligated to provide reasonable accommodations to qualified employees with disabilities. However, there are certain defenses that employers can raise in cases where providing such accommodations would pose undue hardship, when there is a failure to engage in the interactive process, or when accommodation creates health and safety risks. Understanding these defenses is critical for both employers and employees. In this comprehensive overview, we will explore the legal framework surrounding these defenses, potential legal consequences for employers, and identify problems that may arise, supported by examples and detailed reasoning.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits disability discrimination and mandates that employers with five or more employees provide reasonable accommodations to qualified individuals with disabilities. However, it acknowledges that accommodations are not required if they would impose an undue hardship, fundamentally alter the job, or create health and safety risks.

II. Legal Consequences:

A. Wrongful Termination Claims: Employees who believe they were wrongfully terminated due to failure to accommodate can bring legal claims against their employers. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Legal Defense: Employers can defend themselves against wrongful termination claims by asserting one or more of the following defenses:

Undue Hardship: Arguing that providing accommodation would cause significant difficulty or expense.
Failure to Engage in the Interactive Process: Demonstrating that the employee or employer did not actively participate in the interactive process to identify and implement accommodations.
Health and Safety Risk: Asserting that accommodating the employee would pose a direct threat to the health or safety of others in the workplace.

III. Potential Problems:

A. Defining Undue Hardship: Employers and employees may have differing interpretations of what constitutes undue hardship. This can lead to disputes and legal challenges when determining whether an accommodation is reasonable.

B. Failure to Engage in the Interactive Process: Both parties must actively engage in the interactive process to identify and implement appropriate accommodations. A breakdown in communication or unwillingness to participate can hinder the process and lead to disputes.

C. Assessing Health and Safety Risks: Determining when a disability accommodation poses a direct threat to health and safety can be challenging. Employers must base their decisions on objective evidence and assessments rather than assumptions.

IV. Examples:

Undue Hardship Example: An employee with a severe allergy requests that the office be made fragrance-free as a reasonable accommodation. The employer argues that this would impose an undue hardship as it would require significant changes and disruptions in the workplace. If the employer can provide evidence that the cost and disruption are indeed significant, they may have a valid defense against providing this accommodation.
Failure to Engage in the Interactive Process Example: An employee with a hearing impairment requests a sign language interpreter for meetings but does not actively engage with HR or the employer to discuss possible accommodations. If the employer can demonstrate that they made reasonable efforts to engage in the interactive process but the employee did not participate, this may serve as a defense against a wrongful termination claim.
Health and Safety Risk Example: An employee with a highly contagious illness requests to return to work in a crowded office environment despite posing a direct threat to the health and safety of coworkers. The employer may have a valid defense in this case, as accommodating the employee could indeed create significant health and safety risks for others.

Conclusion

In conclusion, understanding the defenses to reasonable accommodation for disabilities is essential for both employers and employees in California. While employers have a duty to accommodate disabled employees, they are not required to do so if it would result in undue hardship, if there is a failure to engage in the interactive process, or if health and safety risks are present. To mitigate risks and ensure compliance with the law, employers should carefully assess each accommodation request, actively engage in the interactive process, and make decisions based on objective evidence to avoid potential legal consequences and disputes.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Disability Discrimination Defense- health Safety Risks

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:

That [describe job duty] was an essential job duty;
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
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:

The duration of the risk;
1. The nature and severity of the potential harm;
2. The likelihood that the potential harm would have occurred;
3. How imminent the potential harm was; [and]
4. 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

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].)

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2544

“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)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Disability Discrimination Defense- Undue Hardship

2545. Disability Discrimination—Affirmative Defense—Undue Hardship

[Name of defendant] claims that accommodating [name of plaintiff]’s disability would create an undue hardship to the operation of [his/her/ nonbinary pronoun/its] business. To succeed on this defense, [name of defendant] must prove that [an] accommodation[s] would create an

undue hardship because it would be significantly difficult or expensive, in light of the following factors:

The nature and cost of the accommodation[s];
[Name of defendant]’s ability to pay for the accommodation[s];
The type of operations conducted at the facility;
The impact on the operations of the facility;
The number of [name of defendant]’s employees and the relationship of the employees’ duties to one another;
The number, type, and location of [name of defendant]’s facilities; and
The administrative and financial relationship of the facilities to one another.

New September 2003; Revised November 2019, May 2020

Directions for Use

The issue of whether undue hardship is a true affirmative defense or whether the defendant only has the burden of coming forward with the evidence of hardship as a way of negating the element of plaintiff’s case concerning the reasonableness of an accommodation appears to be unclear. (See Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 733 [214 Cal.Rptr.3d 113].)

For an instruction in the religious creed context, see CACI No. 2561, Religious Creed Discrimination—Reasonable Accommodation—Affırmative Defense—Undue Hardship.

Sources and Authority

Employer Duty to Provide Reasonable Accommodation. Government Code section 12940(m).
“Undue Hardship” Defined. Government Code section 12926(u).
“ ‘Undue hardship’ means ‘an action requiring significant difficulty or expense, when considered in light of the following factors: [¶] (1) The nature and cost of the accommodation needed. [¶] (2) The overall financial resources of the

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2545

facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. [¶] (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. [¶] (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. [¶] (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.’ (§ 12926, subd. (u).) ‘ “Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis” ’ and ‘is a multi-faceted, fact- intensive inquiry.’ ” (Atkins, supra, 8 Cal.App.5th at p. 733.)

“[U]nder California law and the instructions provided to the jury, an employer must do more than simply assert that it had economic reasons to reject a plaintiff’s proposed reassignment to demonstrate undue hardship. An employer must show why and how asserted economic reasons would affect its ability to provide a particular accommodation.” (Atkins, supra, 8 Cal.App.5th at p. 734, original italics, internal citation omitted.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA), ¶¶ 9:2250, 9:2345, 9:2366, 9:2367 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.80

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.51[4][b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.35, 115.54, 115.100 (Matthew Bender)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Disability Discrimination Defenses- Failure to Engage in Iterative Process

2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process (Gov. Code, § 12940(n))

[Name of plaintiff] contends that [name of defendant] failed to engage in a good-faith interactive process with [him/her/nonbinary pronoun] to determine whether it would be possible to implement effective reasonable accommodations so that [name of plaintiff] [insert job requirements requiring accommodation]. In order to establish this claim, [name of plaintiff] must prove the following:

That [name of defendant] was [an employer/[other covered entity]];
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]];
That [name of plaintiff] had [a] [select term to describe basis of limitations, e.g., physical condition] that was known to [name of defendant];
That [name of plaintiff] requested that [name of defendant] make reasonable accommodation for

[e.g., physical condition] so that [he/she/nonbinary pronoun] would be able to perform the essential job requirements;

That [name of plaintiff] was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that [he/she/nonbinary pronoun] would be able to perform the essential job requirements;
That [name of defendant] failed to participate in a timely good- faith interactive process with [name of plaintiff] to determine whether reasonable accommodation could be made;

[7. That [name of defendant] could have made a reasonable accommodation when the interactive process should have taken place;]

That [name of plaintiff] was harmed; and
That [name of defendant]’s failure to engage in a good-faith interactive process was a substantial factor in causing [name of plaintiff]’s harm.

New December 2007; Revised April 2009, December 2009, May 2022

FAIR EMPLOYMENT AND HOUSING ACT CACI No. 2546

Directions for Use

In elements 3 and 4, select a term to describe the source of the plaintiff’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.”

Modify elements 3 and 4, as necessary, if the employer perceives the employee to have a disability. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61, fn. 21 [43 Cal.Rptr.3d 874].)

In element 4, specify the position at issue and the reason why some reasonable accommodation was needed. In element 5, you may add the specific accommodation requested, though the focus of this cause of action is on the failure to discuss, not the failure to provide.

For an instruction on a cause of action for failure to make reasonable accommodation, see CACI No. 2541, Disability Discrimination—Reasonable Accommodation—Essential Factual Elements. For an instruction defining “reasonable accommodation,” see CACI No. 2542, Disability Discrimination—“Reasonable Accommodation” Explained.

Bracketed element 7 reflects that there is a split of authority as to whether the employee must also prove that a reasonable accommodation was available. (Compare Shirvanyan v. Los Angeles Community College Dist. (2020) 59 Cal.App.5th 82, 87 [273 Cal.Rptr.3d 312] [“the availability of a reasonable accommodation is an essential element of an interactive process claim”] and Nadaf- Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980–985 [83 Cal.Rptr.3d 190] [employee who brings a section 12940(n) claim bears the burden of proving a reasonable accommodation was available before the employer can be held liable under the statute] with Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424–425 [69 Cal.Rptr.3d 1] [jury’s finding that no reasonable accommodation was possible is not inconsistent with its finding of liability for refusing to engage in interactive process] and Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837] [if the employer’s failure to participate in good faith causes a breakdown in the interactive process, liability follows]; see Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018–1019 [93 Cal.Rptr.3d 338] [attempting to reconcile conflict].) See also verdict form CACI No. VF-2513, Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process.

Sources and Authority

Good-Faith Interactive Process. Government Code section 12940(n).
- Federal Interpretive Guidance Incorporated. Government Code section 12926.1(e).
- Interactive Process. The Interpretive Guidance on title I of the Americans With

CACI No. 2546 FAIR EMPLOYMENT AND HOUSING ACT

Disabilities Act, title 29 Code of Federal Regulations Part 1630 Appendix.

An employee may file a civil action based on the employer’s failure to engage in the interactive process. (Claudio, supra, 134 Cal.App.4th at p. 243.)
“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo, supra, 140 Cal.App.4th at p. 54, internal citations omitted.)
“While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242 [206 Cal.Rptr.3d 841].)
“FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379 [184 Cal.Rptr.3d 9].)
“The point of the interactive process is to find reasonable accommodation for a disabled employee, or an employee regarded as disabled by the employer, in order to avoid the employee’s termination. Therefore, a pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Moore, supra, 248 Cal.App.4th at pp. 243–244, original italics.)
“FEHA’s reference to a ‘known’ disability is read to mean a disability of which the employer has become aware, whether because it is obvious, the employee has brought it to the employer’s attention, it is based on the employer’s own perception—mistaken or not—of the existence of a disabling condition or, perhaps as here, the employer has come upon information indicating the presence of a disability.” (Gelfo, supra, 140 Cal.App.4th at p. 61, fn. 21.)
“Typically, the employee must initiate the process ‘unless the disability and resulting limitations are obvious.’ ” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d

258].)

“Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. ‘Both employer and employee have the obligation “to keep communications open” and neither has “a right to obstruct the process.” [Citation.] “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who

fails to participate in good faith.” [Citation.]’ ” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971–972 [181 Cal.Rptr.3d 553].)

“[Employer] asserts that, if it had a duty to engage in the interactive process, the duty was discharged. ‘If anything,’ it argues, ‘it was [employee] who failed to engage in a good faith interactive process.’ [Employee] counters [employer] made up its mind before July 2002 that it would not accommodate [employee]’s limitations, and nothing could cause it reconsider that decision. Because the evidence is conflicting and the issue of the parties’ efforts and good faith is factual, the claim is properly left for the jury’s consideration.” (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 23.)
- “None of the legal authorities that [defendant] cites persuades us that the Legislature intended that after a reasonable accommodation is granted, the interactive process continues to apply in a failure to accommodate context. . . . To graft an interactive process intended to apply to the determination of a reasonable accommodation onto a situation in which an employer failed to provide a reasonable, agreed-upon accommodation is contrary to the apparent intent of the FEHA and would not support the public policies behind that provision.” (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464 [100

Cal.Rptr.3d 449].)

“[T]he verdicts on the reasonable accommodations issue and the interactive process claim are not inconsistent. They involve separate causes of action and proof of different facts. Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. ‘An employee may file a civil action based on the employer’s failure to engage in the interactive process.’ Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. An employer may claim there were no available reasonable accommodations. But if it did not engage in a good faith interactive process, ‘it cannot be known whether an alternative job would have been found.’ The interactive process determines which accommodations are required. Indeed, the interactive process could reveal solutions that neither party envisioned.” (Wysinger, supra, 157 Cal.App.4th at pp. 424–425, internal citations omitted.)
- “We disagree . . . with Wysinger’s construction of section 12940(n). We conclude that the availability of a reasonable accommodation (i.e., a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940(n) claim. [¶] Applying the burden of proof analysis in Green, supra, 42 Cal.4th 254, we conclude the burden of proving the availability of a reasonable accommodation rests on the employee.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 984–985.)
- “We synthesize Wysinger, Nadaf-Rahrov, and Claudio with our analysis of the law as follows: To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a

reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because ‘ “ ‘[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. ’ ” ’ However, as the Nadaf-Rahrov

court explained, once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced: ‘Section 12940[, subdivision](n), which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.’ ” (Scotch, supra, 173 Cal.App.4th at pp.

1018–1019.)

“Well-reasoned precedent supports [defendant’s] argument that, in order to succeed on a cause of action for failure to engage in an interactive process, ‘an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.’ ” (Shirvanyan, supra, 59 Cal.App.5th at p. 96.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1048

Chin, et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability Discrimination—California Fair Employment and Housing Act (FEHA),

¶¶ 9:2280–9:2285, 9:2345–9:2347 (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, § 41.51[3][b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.35[1][a] (Matthew Bender)

1 California Civil Practice: Employment Litigation, § 2:50 (Thomson Reuters)

Age Discrimination Examples

Illustrations of Wrongful Termination based on Discrimination- Age

Age Discrimination: Illustrations of Wrongful Termination based on Discrimination-

examples illustrating grounds or facts for suing an employer for wrongful termination based on age discrimination in California:

Example 1: Disparate Treatment Discrimination

Facts: John, a 55-year-old employee, has worked as a sales manager for a California-based company for over 20 years. He has consistently met or exceeded his sales targets and received commendations for his performance. However, when a new CEO takes over the company, he expresses a desire for a younger workforce.

The CEO begins sidelining John, excluding him from important meetings and decision-making processes. He also makes comments about the need for “fresh, youthful energy” in the company. Soon after, John is terminated for alleged underperformance, despite his long history of success.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Age: John can argue that his termination was based on his age, as evidenced by the CEO’s comments about the desire for a younger workforce, exclusion from key meetings, and the timing of his termination following the CEO’s arrival.

Example 2: Ageist Comments and Stereotypes

Facts: Susan, a 50-year-old executive assistant, has worked for a California-based corporation for several years. Her supervisor, Mark, often makes derogatory comments about older employees, including jokes about memory loss and slower work pace. Mark also begins assigning Susan less critical tasks and excludes her from planning meetings.

Susan is alarmed by the ageist comments and her diminishing responsibilities. When she confronts Mark about her treatment, he dismisses her concerns and tells her that he believes younger employees are more “energetic” and “innovative.” Shortly thereafter, Susan is terminated for alleged insubordination.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Age: Susan can argue that her termination was based on her age, as evidenced by Mark’s ageist comments, disparate treatment, and the timing of her termination shortly after raising concerns about her treatment.

Example 3: Replaced by a Younger Employee

Facts: Robert, a 60-year-old software engineer, has worked for a California tech company for many years. He consistently received positive performance reviews and was considered a subject matter expert. However, the company hires a new manager who expresses a desire for a younger workforce.

Shortly afterward, Robert is informed that his position is being eliminated due to restructuring. However, the company immediately hires a significantly younger employee to fill a similar role with a slightly modified job title.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Age: Robert can argue that his termination was based on his age, as evidenced by the manager’s desire for a younger workforce, the immediate hiring of a younger replacement for a similar role, and the timing of his termination.

Illustrations of wrongful termination based on disability discrimination in California:

Disability – Illustrations of Wrongful Termination based on Discrimination

The following are examples illustrating grounds or facts for suing an employer for wrongful termination based on disability discrimination in California:

Example 1: Failure to Provide Reasonable Accommodations

Facts: Sarah, an employee with a physical disability, has worked as an administrative assistant at a California-based company for several years. She uses a wheelchair and has requested a reasonable accommodation—an adjustable desk to accommodate her needs. The company refuses her request and insists that her current desk is sufficient.

Over time, Sarah experiences increasing discomfort and difficulty performing her job due to the lack of accommodation. Despite her continued requests, the company fails to provide the necessary desk. Sarah’s performance declines as a result, and she is eventually terminated for alleged poor job performance.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Disability: Sarah can argue that her termination was based on her disability, as evidenced by the company’s failure to provide a reasonable accommodation, resulting in declining job performance.
Failure to Accommodate: Sarah can claim that the company’s refusal to provide a reasonable accommodation for her disability constitutes discrimination under the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).

Example 2: Retaliation for Requesting Accommodation

Facts: James, an employee with a visual impairment, has been working for a California-based company for several years. He has successfully performed his duties with the help of assistive technology and screen-reading software. However, when a new supervisor, Susan, takes over, she expresses frustration with accommodating James’s needs.

Susan makes derogatory comments about James’s disability and insists that he should not need any special accommodations. James is uncomfortable with Susan’s attitude and files a formal request for reasonable accommodation to ensure he can continue to perform his job effectively. Shortly thereafter, he is terminated, with the company citing budget cuts as the reason.

Grounds for Wrongful Termination Lawsuit:

Retaliation for Requesting Accommodation: James can argue that his termination was in retaliation for requesting a reasonable accommodation due to his visual impairment. The timing of his termination shortly after filing the accommodation request strengthens his case.

Example 3: Disparate Treatment Discrimination

Facts: Emily, an employee with a psychiatric disability, works as a sales representative for a California-based company. She has been open about her disability and has been successfully managing her condition with medication and therapy. However, when her supervisor changes, he begins treating Emily differently.

He frequently makes disparaging comments about mental health conditions, such as calling employees with psychiatric disabilities “unstable.” Emily overhears these comments and becomes concerned about her job security. Shortly thereafter, she is terminated for alleged insubordination, a charge she disputes.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Disability: Emily can argue that her termination was based on her psychiatric disability, as evidenced by her supervisor’s derogatory comments about mental health conditions and the timing of her termination following her complaints.

Discrimination Based on National Origin – Example

Illustrations of Wrongful Termination based on Discrimination- National Origin

National Origin – Illustrations of Wrongful Termination based on Discrimination

examples illustrating grounds or facts for suing an employer for wrongful termination based on national origin discrimination in California:

Example 1: Disparate Treatment Discrimination

Facts: Ahmed, an Iranian immigrant, has been employed as a software developer at a California-based tech company for several years. He has consistently received positive performance evaluations and has played a crucial role in the company’s projects. However, when a new manager, John, takes over, Ahmed notices a change in his treatment.

John begins assigning Ahmed menial tasks that are below his skill level, while giving more significant and challenging projects to his non-immigrant colleagues. John also makes derogatory comments about people from the Middle East, including Ahmed. When Ahmed raises concerns about the disparity in project assignments, he is terminated for alleged poor performance.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on National Origin: Ahmed can argue that his termination was based on his Iranian national origin, as evidenced by the derogatory comments, disparate treatment in project assignments, and the sudden shift in his treatment after the new manager took over.
Retaliation: If Ahmed complained about national origin discrimination to HR or his supervisor and was terminated shortly afterward, he may have grounds for a retaliation claim in addition to national origin discrimination.

Example 2: Language Discrimination

Facts: Maria, a Mexican immigrant, has worked as a customer service representative at a call center in California for several years. She has consistently met her performance metrics and received positive feedback from customers. However, a new company policy is implemented, requiring all employees to speak only English while on the job.

Maria speaks English fluently but occasionally converses with her Spanish-speaking coworkers during breaks. One day, her supervisor informs her that she is being terminated because her conversations in Spanish are not in compliance with the new policy, even though English is used for all customer interactions.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on National Origin: Maria can argue that her termination was based on her Mexican national origin, as the company selectively enforced the English-only policy against her due to her occasional conversations in Spanish.

Example 3: Disparate Impact Discrimination

Facts: David, an employee of Indian national origin, works in a managerial role for a California-based company. The company introduces a mandatory company event that requires employees to attend on a Saturday. This event conflicts with David’s religious observance.

David requests a reasonable accommodation to be excused from attending the event on Saturdays or to have an alternative assignment. The company denies David’s request, stating that all employees must attend the event on Saturdays. As a result, David is unable to comply with the policy and is terminated for not participating in the event.

Grounds for Wrongful Termination Lawsuit:

Disparate Impact Discrimination: David can argue that the company’s policy disproportionately impacts employees of certain national origins, as it interferes with his ability to observe religious practices associated with his national origin.
Failure to Accommodate: David can claim that the company’s refusal to provide a reasonable accommodation for his religious practices constitutes discrimination under Title VII and the California Fair Employment and Housing Act (FEHA).

Gender Discrimination Examples

Illustrations of Wrongful Termination based on Discrimination- Gender

Gender -Illustrations of Wrongful Termination based on Discrimination

The following examples illustrate potential grounds or facts for suing an employer for wrongful termination based on gender discrimination in California:

Example 1: Disparate Treatment Discrimination

Facts: Sarah, a female employee, works as an engineer at a technology company in California. She has consistently received positive performance reviews and has been praised for her contributions to the team. However, when a promotion opportunity arises, Sarah’s male supervisor, John, promotes a less qualified male colleague over her.

Sarah later discovers that her male colleagues with similar qualifications receive higher salaries and better opportunities for career advancement. When she raises these concerns with HR, she is met with hostility and criticism. Shortly thereafter, she is terminated for alleged insubordination.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Gender: Sarah can argue that she was terminated because of her gender, as evidenced by the promotion disparity, salary discrepancies, and hostile reaction to her complaints about gender-based discrimination.
Retaliation: If Sarah complained about gender discrimination to HR and was terminated shortly afterward, she may have grounds for a retaliation claim in addition to gender discrimination.

Example 2: Hostile Work Environment

Facts: Maria, a female employee, works in a sales department for a California-based company. She endures a hostile work environment in which her male colleagues consistently make sexist remarks, engage in inappropriate behavior, and create a demeaning atmosphere. Despite Maria’s complaints to her supervisor and HR, the company fails to take effective action to address the hostile environment.

Eventually, Maria is terminated after a male colleague falsely accuses her of violating company policy. She believes that the accusation and her termination are in retaliation for her complaints about the hostile work environment.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Gender: Maria can argue that her termination was the result of a hostile work environment that was created because of her gender. The company’s failure to address this environment further supports her case.
Retaliation: Maria may claim that her termination was retaliation for her complaints about gender-based discrimination and the hostile work environment.

Example 3: Pregnancy Discrimination

Facts: Emily, a female employee, works as a manager for a retail store in California. She becomes pregnant and informs her supervisor of her pregnancy. Shortly after revealing her pregnancy, Emily’s supervisor starts assigning her additional workload and reducing her responsibilities, making it increasingly difficult for her to perform her job effectively.

Emily also faces derogatory comments from her supervisor and coworkers about pregnant women being unreliable and a burden on the company. Eventually, Emily is terminated for alleged poor performance.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Gender and Pregnancy: Emily can argue that her termination was a result of gender and pregnancy discrimination, as evidenced by the increased workload, reduction of responsibilities, and derogatory comments she faced after disclosing her pregnancy.

Discrimination re Religion Examples

Illustrations of Wrongful Termination based on Discrimination- Religion

Religion- Illustrations of Wrongful Termination based on Discrimination

The following examples illustrate grounds or facts for suing an employer for wrongful termination based on religion discrimination in California:

Example 1: Failure to Accommodate Religious Practices

Facts: Ahmed, a Muslim employee, has been working for a retail store in California for several years. He observes daily prayers at specific times, including during work hours. Ahmed informs his supervisor about his religious practice and requests a reasonable accommodation to have a short break for prayer during his shifts. The supervisor denies the request, citing staffing shortages. Despite Ahmed’s attempts to find a compromise, he is terminated for taking unauthorized breaks to pray.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Religion: Ahmed can argue that he was terminated because of his religious beliefs and practices. His requests for a reasonable accommodation to observe his religion’s requirements were denied, leading to his termination.
Failure to Accommodate: Ahmed can claim that the employer failed to provide a reasonable accommodation for his religious practices, which is a violation of his rights under Title VII and the California Fair Employment and Housing Act (FEHA).

Example 2: Disparate Treatment Discrimination

Facts: Maria, a Catholic employee, works as an accountant for a firm in California. She wears a small crucifix necklace as part of her religious expression. Her new supervisor, John, openly expresses his disapproval of her religious symbol, making derogatory comments about Catholicism. Despite Maria’s repeated complaints to HR about religious discrimination, the company takes no action. Eventually, she is terminated, with the company citing budget cuts as the reason.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Religion: Maria can argue that she was subjected to a hostile work environment and ultimately terminated because of her Catholic faith and the religious symbol she wore.
Retaliation: If Maria reported religious discrimination to HR, her termination shortly thereafter could be seen as retaliation, constituting a separate legal claim.

Example 3: Disparate Impact Discrimination

Facts: David, a Jewish employee, works as a marketing manager for a company in California. The company introduces a mandatory Saturday work requirement, which conflicts with David’s religious observance of the Sabbath. David requests a reasonable accommodation to be excused from working on Saturdays or to have an alternative work schedule.

The company denies David’s request, stating that all employees must work on Saturdays. As a result, David is unable to comply with the policy and is terminated for excessive absences.

Grounds for Wrongful Termination Lawsuit:

Disparate Impact Discrimination: David can argue that the company’s policy disproportionately impacts employees of certain religious backgrounds, as it interferes with his ability to observe the Sabbath.
Failure to Accommodate: David can claim that the company’s refusal to provide a reasonable accommodation for his religious practices constitutes discrimination under Title VII and the FEHA.

Race Discrimination Examples

Illustrations of Wrongful Termination based on Race Discrimination

Race: Illustrations of Wrongful Termination based on Race Discrimination

examples illustrating grounds or facts for suing an employer for wrongful termination based on race discrimination in California:

Example 1: Disparate Treatment Discrimination

Facts: Jane, an African American woman, has worked as a software engineer for a technology company in California for ten years. During her tenure, she consistently received positive performance reviews and was promoted twice. However, a new supervisor, Mike, took over her department. Soon after, Jane noticed a significant change in her work environment. Mike began assigning her less challenging projects, excluded her from important meetings, and made derogatory comments about her race, including racially insensitive jokes.

Despite her attempts to address the issue with HR, the discriminatory treatment continued. Eventually, Jane was terminated, with the company citing alleged performance issues as the reason.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Race: Jane can argue that her termination was based on her race, as evidenced by the derogatory comments and the differential treatment she experienced after her new supervisor took over.
Retaliation: If Jane complained about racial discrimination to HR, she may have grounds for retaliation if her termination occurred shortly after her complaint. This would constitute a separate legal claim.

Example 2: Hostile Work Environment

Facts: Carlos, a Latino employee, worked for a retail company in California. Over time, he began experiencing a hostile work environment. His coworkers consistently made racial slurs and derogatory comments about Latinos in his presence. Despite reporting these incidents to his supervisor and HR, the company did not take any meaningful action to address the issue. Eventually, Carlos was terminated for alleged insubordination.

Grounds for Wrongful Termination Lawsuit:

Discrimination Based on Race: Carlos can argue that the hostile work environment and his eventual termination were based on his Latino ethnicity. The racial slurs and derogatory comments contribute to the evidence of discrimination.
Failure to Address Hostile Work Environment: The company’s failure to address the hostile work environment, even after Carlos reported it, strengthens his case. It demonstrates the company’s indifference to racial discrimination.

Example 3: Disparate Impact Discrimination

Facts: Sarah, an Asian American employee, works in a manufacturing plant in California. The company implements a new policy requiring all employees to work night shifts regularly. Sarah has a medical condition that makes it challenging for her to work night shifts, and she requests an accommodation of a modified schedule.

The company denies Sarah’s request and informs her that she must work night shifts or face termination. As a result, Sarah is unable to comply with the policy, and she is terminated.

Grounds for Wrongful Termination Lawsuit:

Disparate Impact Discrimination: Sarah can argue that the company’s policy of requiring night shifts disproportionately impacts employees with disabilities, as it affects her ability to work due to her medical condition.
Failure to Accommodate: Sarah can claim that the company’s refusal to provide a reasonable accommodation by modifying her schedule constitutes discrimination under the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).