CACI 2543 Disability Discrimination—“Essential Job Duties” Explained (Gov. Code, §§ 12926(f), 12940(a)(1))

New September 2003; Revoked June 2013; Restored and Revised December 2013; Revised May 2020

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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].)

•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.)