CACI 2547 Disability-Based Associational Discrimination—Essential Factual Elements

California Civil Jury Instructions CACI

2547 Disability-Based Associational Discrimination—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] wrongfully discriminated against [him/her/nonbinary pronoun] based on [his/her/nonbinary pronoun] association with a disabled person. To establish this claim, [name of plaintiff] must prove all of the following:

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

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

3.That [name of plaintiff] was [specify basis of association or relationship, e.g., the brother of [name of disabled person]], who had [a] [e.g., physical condition];

4.[That [name of disabled person]’s [e.g., physical condition] was costly to [name of defendant] because [specify reason, e.g., [name of disabled person] was covered under [plaintiff]’s employer-provided health care plan];]


[That [name of defendant] feared [name of plaintiff]’s association with [name of disabled person] because [specify, e.g., [name of disabled person] has a disability with a genetic component and [name of plaintiff] may develop the disability as well];]


[That [name of plaintiff] was somewhat inattentive at work because [name of disabled person]’s [e.g., physical condition] requires [name of plaintiff]’s attention, but not so inattentive that to perform to [name of defendant]’s satisfaction [name of plaintiff] would need an accommodation;]


[[Specify other basis for associational discrimination];]

5.That [name of plaintiff] was able to perform the essential job duties;

6.[That [name of defendant] [discharged/refused to hire/[other adverse employment action]] [name of plaintiff];]


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


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

7.That [name of plaintiff]’s association with [name of disabled person] was a substantial motivating reason for [name of defendant]’s [decision to [discharge/refuse to hire/[other adverse employment action]] [name of plaintiff]/conduct];

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

9.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

Give this instruction if plaintiff claims that the plaintiff was subjected to an adverse employment action because of the plaintiff’s association with a disabled person. Discrimination based on an employee’s association with a person who is (or is perceived to be) disabled is an unlawful employment practice under the FEHA. (See Gov. Code, § 12926(o).)

Select a term to use throughout to describe the source of the disabled person’s limitations. It may be a statutory term such as “physical disability,” “mental disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such as “condition,” “disease,” or “disorder.” Or it may be a specific health condition such as “diabetes.”

Three versions of disability-based associational discrimination have been recognized, called “expense,” “disability by association,” and “distraction.” (See Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 655–660 [163 Cal.Rptr.3d 392] [claim for “disability-based associational discrimination” adequately pled].) Element 4 sets forth options for the three versions. But the versions are illustrative rather than exhaustive; therefore, an “other” option is provided. (See Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1042 [207 Cal.Rptr.3d 120].)

An element of a disability discrimination case is that the plaintiff must be otherwise qualified to do the job, with or without reasonable accommodation. (Green v. State of California (2007) 42 Cal.4th 254, 262 [64 Cal.Rptr.3d 390, 165 P.3d 118] (see element 5).) However, the FEHA does not expressly require reasonable accommodation for association with a disabled person. (Gov. Code, § 12940(m) [employer must reasonably accommodate applicant or employee].) Nevertheless, one court has suggested that such a requirement may exist, without expressly deciding the issue. (See Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1038–1039.) A reference to reasonable accommodation may be added to element 5 if the court decides to impose this requirement.

Read the first option for element 6 if there is no dispute as to whether the employer’s acts constituted an adverse employment action. Read the second option and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether there was an adverse employment action is a question of fact for the jury. If constructive discharge is alleged, give the third option for element 6 and also give CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element 7 if either the second or third option is included for element 4.

Element 7 requires that the disability be a substantial motivating reason for the adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; Castro-Ramirez, supra, 2 Cal.App.5th at p. 1037; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)

If the existence of the associate’s disability is disputed, additional instructions defining “medical condition,” “mental disability,” and “physical disability,” may be required. (See Gov. Code, § 12926(i), (j), (m).)

Sources and Authority

Disability Discrimination Prohibited Under Fair Employment and Housing Act. Government Code section 12940(a).

“Medical Condition” Defined. Government Code section 12926(i).

“Mental Disability” Defined. Government Code section 12926(j).

“Physical Disability” Defined. Government Code section 12926(m).

Association With Disabled Person Protected. Government Code section 12926(o).

“ ‘Three types of situation are, we believe, within the intended scope of the rarely litigated … association section. We’ll call them “expense,” “disability by association,” and “distraction.” They can be illustrated as follows: an employee is fired (or suffers some other adverse personnel action) because (1) (“expense”) his spouse has a disability that is costly to the employer because the spouse is covered by the company’s health plan; (2a) (“disability by association”) the employee’s homosexual companion is infected with HIV and the employer fears that the employee may also have become infected, through sexual contact with the companion; (2b) (another example of disability by association) one of the employee’s blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin); (3) (“distraction”) the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours.’ ” (Rope, supra, 220 Cal.App.4th at p. 657.)

“We agree with Rope [supra] that Larimer [Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698] provides an illustrative, rather than an exhaustive, list of the kinds of circumstances in which we might find associational disability discrimination. The common thread among the Larimer categories is simply that they are instances in which the ‘employer has a motive to discriminate against a nondisabled employee who is merely associated with a disabled person.’ As we discuss above, this is an element of a plaintiff’s prima facie case—that the plaintiff’s association with a disabled person was a substantial motivating factor for the employer’s adverse employment action. Rope held the alleged facts in that case could give rise to an inference of such discriminatory motive. Our facts do not fit neatly within one of the Larimer categories either, but a jury could reasonably infer the requisite discriminatory motive.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1042, internal citation omitted.)

“ ‘[A]n employer who discriminates against an employee because of the latter’s association with a disabled person is liable even if the motivation is purely monetary. But if the disability plays no role in the employer’s decision … then there is no disability discrimination.’ ” (Rope, supra, 220 Cal.App.4th at p. 658, original italics.)

“A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability. Adapting this [disability discrimination] framework to the associational discrimination context, the ‘disability’ from which the plaintiff suffers is his or her association with a disabled person. … [T]he disability must be a substantial factor motivating the employer’s adverse employment action.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1037.)

“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply 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.)

“[W]hen section 12940, subdivision (m) requires employers to reasonably accommodate ‘the known physical … disability of an applicant or employee,’ read in conjunction with other relevant provisions, subdivision (m) may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.” (Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1038–1039.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1045, 1046, 1049
Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA), ¶¶ 9:2213–9:2215 (The Rutter Group)
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.32[2] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.14, 115.23, 115.34 (Matthew Bender)