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JUDICIAL UPDATES California Supreme Court Clarifies Burden of Proof for Employees Making Disability Discrimination Claims In a positive development for employers, the California Supreme Court reversed a Court of Appeal judgment which held that the California Fair Employment & Housing Act (“FEHA”) does not impose a burden on plaintiff employees to prove they are “qualified individuals” as similarly required under the federal counterpart, the American With Disabilities Act (“ADA”). In its reversal, the Court held that FEHA, although it does not expressly include the term “qualified individual,” has an analogous requirement to the ADA based on the clear and unambiguous statutory language, legislative intent, and well-settled case law. As a result, a plaintiff employee must carry the burden of proof to show that she is a “qualified individual with a disability,” or an individual with a disability who could perform the essential duties of the job with or without reasonable accommodation, as an element of a claim for relief under FEHA. The plaintiff, Dwight Green, a state prison employee, brought suit for disability discrimination under FEHA when his medical condition and treatments rendered him incapable of performing his job duties. The prison refused his request to return to his job, based on previous workers’ compensation proceeding findings that he had suffered a work-related injury. The plaintiff successfully won at trial and on appeal, the Court of Appeal affirmed the judgment holding that the plaintiff was not required to prove he is a “qualified individual with disability,” but rather that under FEHA, the defendant was required to establish that the plaintiff was incapable of performing his essential duties with reasonable accommodation. The California Supreme Court granted the defendant’s request for review of the issue. The rationale for the Court’s decision is rooted in the clear, unambiguous language of FEHA, which shadows its federal counterpart. Under the ADA, it is not unlawful to terminate an employee solely due to a disability in of itself; rather, the statute clearly extends its protections only to a “qualified individual with a disability” who suffered a resulting wrongful termination or discrimination. ADA defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (42 U.S.C. § 12111(8).) Federal case law has consistently upheld that the burden of proof for this element under the ADA rests with the plaintiff employee, not the defendant employer. Like its federal counterpart, FEHA asserts that the statute “does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . [who] is unable to perform his or her essential duties even with reasonable accommodations.” (Government Code §12940 subd. (a)(1).) In Green, the Court found the language, like the ADA, does not prohibit an employer from terminating and failing to hire an individual based on to their physical or mental disability in and of itself, but rather that FEHA protects against adverse employment action against an individual who is otherwise qualified (i.e., can perform their essential duties with or without reasonable accommodation) and is disabled. The Court concluded that when the California Legislature amended FEHA to narrow the class of plaintiffs to disabled individuals who could perform the “essential duties with reasonable accommodations,” it was attempting to incorporate ADA standards. Legislative intent and history also support the interpretation that FEHA was intended to conform to the ADA and incorporate its standards and requirements. This case has positive ramifications for California employers since it definitively settles the issue of who carries the burden of proof for this element in order for a FEHA claim to go forward. With the burden on the plaintiff, it could very well narrow the class of plaintiff employees in California who can file a viable disability discrimination claim under FEHA. (Green v. State of California, California Supreme Court Case Number S137770; August 23, 2007.)
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