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

California Civil Jury Instructions CACI

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:

1.That [name of defendant] was [an employer/[other covered entity]];

2.That [name of plaintiff] [was an employee of [name of defendant]/applied to [name of defendant] for a job/[describe other covered relationship to defendant]];

3.That [[name of plaintiff] 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]];]

5.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];

6.That [name of defendant] failed to provide reasonable accommodation for [name of plaintiff]’s [e.g., physical condition];

7.That [name of plaintiff] was harmed; and

8.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

Crowdsource Lawyers

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.”

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 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.

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).)

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.” (Cornellsupra, 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.’ ” (Prillimansupra, 53 Cal.App.4th at p. 947.)

“ ‘Ordinarily, the reasonableness of an accommodation is an issue for the jury.’ ” (Prillimansupra, 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)