Diffey v. Riverside County Sheriff’s Department
An employer that accurately judges an applicant unqualified for one job because of a genuine physical limitation does not thereby “regard” him as disabled; the perceived-disability prong reaches only perceptions rooted in “myths, fears and stereotypes.”
Diffey v. Riverside County Sheriff’s Dept. (2000) 84 Cal.App.4th 1031
Disability & Accommodation
Regarded-as / perceived disability
Major life activity of working
FEHA (Gov. Code § 12926)
In brief. A jury found that Riverside County, which refused to hire a color-blind applicant as a deputy sheriff, did not consider him actually disabled but did “regard” him as disabled. The Court of Appeal reversed the denial of the County’s motion for judgment notwithstanding the verdict, holding “there is not substantial evidence to support the jury’s finding that the County regarded plaintiff as disabled.” (Diffey v. Riverside County Sheriff’s Dept. (2000) 84 Cal.App.4th 1031, 1034.) Because an accurate assessment that an applicant cannot meet a valid color-vision requirement is not a perception born of “myths, fears or stereotypes,” the perceived-disability prong was not satisfied, and the court remanded with directions to enter judgment for the defendants. (Id. at pp. 1039–1040.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The statutory framework. Both the federal Americans with Disabilities Act and California’s Fair Employment and Housing Act make the existence of a “disability” the threshold question in any disability-discrimination case. As the court framed it, “the threshold issue is whether the plaintiff has a disability,” and “the first essential element of a claim for unlawful disability discrimination is that the plaintiff is disabled or regarded as disabled.” (Diffey, supra, 84 Cal.App.4th at p. 1035, citing 42 U.S.C. § 12112(a), Gov. Code, § 12940, subd. (a), Gov. Code, § 12926, subd. (k), and Sutton v. United Air Lines, Inc. (1999) 527 U.S. 471.) The plaintiff carries that burden: “The plaintiff has the burden to establish he has a disability.” (Ibid.) Critically, both statutes converge on a single substantive requirement: “Both the ADA and FEHA require that an impairment, real or perceived, must substantially limit a major life activity in order to qualify as a disability.” (Id. at p. 1036.)
The jury’s definitional instruction. The operative definition of “physical disability,” as given to the jury and quoted in the opinion, captures the two prongs at issue. Physical disability means “‘[o]ne, having a physiological disorder or condition that affects one or more body systems, including sense organs; and that substantially limits an individual’s ability to participate in a major life activity; or; [¶] [t]wo, being regarded as having a disorder or condition described in paragraph 1.’” (Diffey, supra, 84 Cal.App.4th at p. 1036.) The instruction listed “seeing” and “working” among the “‘[m]ajor life activities,’” and clarified that “‘[t]he major life activity of working is not defined as working at any one particular job. The term “working” in this context refers to employment generally.’” (Ibid.) The same instruction warned the jury that a refusal to hire for a specific job, standing alone, is not enough: “‘The test is not that the applicant was regarded as being unqualified for a particular job, but rather that the applicant was regarded as being substantially limited in his ability to participate in a major life activity.’” (Ibid.)
The applicant and his condition. The County “would not hire Teg Diffey as a deputy sheriff because he is color-blind.” (Diffey, supra, 84 Cal.App.4th at p. 1033.) The more precise diagnosis was “deficient color vision”; Diffey was “affected by protanopia, the inability to see red,” with “‘extensive color confusion’” and a “‘severe color vision deficit.’” (Id. at pp. 1033, 1034.)
The color-vision testing regime. The department followed POST (Police Officer Standards and Training) guidelines, “a state-funded organization designed to insure professional standards in law enforcement.” (Diffey, supra, 84 Cal.App.4th at p. 1034.) POST recommended two color-vision tests — the Ishihara plate test, which “accurately detects color deficiency but does not measure the degree of severity,” and the Farnsworth D-15, which “screens out more serious color deficiencies.” (Ibid.) Diffey “failed both color tests.” (Ibid.) Although a tinted “X-Chrom” contact lens let him pass the Farnsworth D-15, “the 1994 POST guidelines preclude using the X-Chrom lens for color vision testing,” rendering any such result “invalid under POST.” (Ibid.) POST guidelines recommended that a person failing the Farnsworth D-15 “‘be restricted from field duty requiring color identification and discrimination,’” and the court noted that “[f]ield duty is an essential part of a deputy sheriff’s job and requires the ability to identify colors immediately and accurately.” (Ibid.)
The County’s stated reason. Lieutenant Larry Grotefend, who commanded the personnel department, “testified that the County did not hire Diffey as a deputy sheriff because he did not pass the color tests and could not meet the POST standards for color vision testing.” (Diffey, supra, 84 Cal.App.4th at p. 1034.) Notably, Grotefend “did not view Diffey as disabled” and “gave his opinion that a blind person would be disabled, not a color-blind person”; he testified that “Diffey could qualify to perform 63 other jobs with the sheriff’s department — but not the job of deputy sheriff.” (Id. at p. 1039.) Diffey himself testified that he “saw himself as ‘color dumb’ but not disabled,” and that “[h]is color deficiency had never affected any aspect of his life except to prevent him from being hired as a sheriff’s deputy.” (Ibid.)
Procedural history
Diffey sued the County and a department nurse, Rebecca Perkins, “under FEHA … and the ADA … for discrimination and retaliation.” (Diffey, supra, 84 Cal.App.4th at p. 1033.) The trial, “[f]or reasons not readily apparent to the eyes of this court,” was “conducted in four phases.” (Id. at p. 1035.) In phase 1 the jury decided bona fide occupational qualification (BFOQ) and reasonable accommodation; in phase 2 it addressed disability; phase 3 covered retaliation; and phase 4 concerned damages. (Ibid.) After Diffey’s offer of proof, the court “granted a directed verdict against Diffey on his retaliation claim.” (Id. at p. 1033.) The jury then “decided Diffey was not disabled but the County regarded him as disabled,” and returned a discrimination verdict of $307,244. (Id. at pp. 1033, 1035.) Post-trial, the court “granted defendants’ motion for new trial … on the grounds that the jury had rendered an inconsistent verdict and for instructional error,” but “denied” the defendants’ separate motion for judgment notwithstanding the verdict (JNOV). (Id. at pp. 1033, 1035.) Diffey appealed the directed verdict and new-trial orders; the defendants cross-appealed the denial of JNOV. (Id. at p. 1033.) The Court of Appeal, Fourth Appellate District, Division Two, reversed the denial of JNOV in a unanimous opinion by Justice Gaut, joined by Presiding Justice Ramirez and Justice Richli; that disposition “eliminate[d] the other issues raised by the parties.” (Id. at p. 1034.) The Supreme Court denied review on February 21, 2001.
Issue
The jury having found Diffey was not actually disabled, the dispositive question was whether substantial evidence supported its separate finding that the County nevertheless regarded him as disabled. The court framed it precisely: “the question on appeal is whether substantial evidence showed that the County regarded Diffey as disabled even if he was not.” (Diffey, supra, 84 Cal.App.4th at p. 1037.) Embedded within that inquiry was a legal sub-question about the content of the “regarded as” prong — namely, whether an employer’s accurate judgment that an applicant cannot meet a valid job requirement for one position can constitute regarding him as substantially limited in a major life activity.
Holding
Reversed with directions to enter judgment for the defendants. The court held “there is not substantial evidence to support the jury’s finding that the County regarded plaintiff as disabled.” (Diffey, supra, 84 Cal.App.4th at p. 1034.) An employer satisfies the perceived-disability prong only where its perception “stem[s] from a false idea about the existence of or the limiting effect of a disability” — that is, from “myths, fears and stereotypes” about disability. (Id. at pp. 1037–1038, 1039.) Here, “the County did not find him qualified to be a deputy sheriff,” an accurate assessment of a genuine limitation, and “there is no evidence that the County’s treatment of Diffey resulted from myths, fears or stereotypes about color blindness,” nor that it “regarded Diffey’s major life activity of seeing or working as substantially limited by his condition.” (Id. at p. 1039.) Because “[a] person is not substantially limited in the major life activity of working merely because he is prevented from working as a police officer,” Diffey had no disability under either prong and could not invoke the protections of the ADA or FEHA. (Id. at pp. 1039–1040.) The court expressly “reject[ed] the statement made in Real v. City of Compton” requiring such a plaintiff to show he was “regarded as precluded from a broad class of jobs.” (Id. at p. 1040.)
Reasoning
Substantial-evidence review, viewed for the verdict. The court applied the deferential standard governing denial of JNOV: “whether substantial evidence supports the jury verdict,” examining “the record in a light most favorable to the respondent.” (Diffey, supra, 84 Cal.App.4th at p. 1035.) It reaffirmed its obligation “to indulge every reasonable inference supporting the jury’s verdict in favor of Diffey.” (Id. at p. 1038.) That this exacting, plaintiff-favoring posture still produced reversal underscores the absence of supporting proof: even resolving all inferences for Diffey, the court “scoured the record and cannot find any evidence to support Diffey’s contention that the County regarded his color deficiency as a disability rather than a valid job requirement.” (Ibid.)
Refusing to hire for one job is not, by itself, regarding the applicant as disabled. The court’s analysis turned on the distinction the jury instruction itself drew: being thought “‘unqualified for a particular job’” differs from being thought “‘substantially limited in his ability to participate in a major life activity.’” (Diffey, supra, 84 Cal.App.4th at p. 1036.) A refusal to hire for a specific position “‘may be considered as evidence’” of perceived disability, but “‘such a refusal does not in and of itself constitute regarding the individual as having a legal disability.’” (Ibid.) The County’s decision was an accurate qualification judgment, not a misperception of Diffey’s capacities: “the County did not find him qualified to be a deputy sheriff.” (Id. at p. 1039.)
The “regarded as” prong requires a perception born of a false idea. Drawing on the Supreme Court’s exposition in Sutton v. United Air Lines, Inc., the court explained that the perceived-disability theory protects against the harm of misperception: a “‘covered entity [must] entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting.’” (Diffey, supra, 84 Cal.App.4th at p. 1037, quoting Sutton, supra, 527 U.S. at p. 489.) Such misperceptions “‘often “resul[t] from stereotypic assumptions not truly indicative of … individual ability,”’” because “‘“society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”’” (Ibid.) The prong’s purpose, the court stressed, “is to protect individuals rejected from a job because of the ‘myths, fears and stereotypes’ associated with disabilities,” so that “in order to find a perceived disability, the perception must stem from a false idea about the existence of or the limiting effect of a disability.” (Id. at pp. 1037–1038.) The County’s assessment of Diffey was the opposite of a false idea — it was correct.
Employers may set valid physical criteria. Again following Sutton, the court recognized that “‘the ADA allows employers to prefer some physical attributes over others and to establish physical criteria.’” (Diffey, supra, 84 Cal.App.4th at pp. 1037–1038, quoting Sutton, supra, 527 U.S. at p. 490.) Liability arises only “‘when [an employer] makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity.’” (Ibid.) An employer therefore remains “‘free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.’” (Ibid.) The record here established that “color vision was a valid job requirement for a deputy sheriff,” a finding the jury itself ratified by concluding “the color vision requirement used by the County is a bona fide occupational qualification for patrol duties”; the court added that “[n]o contrary evidence was presented.” (Id. at p. 1039.)
Seeing was not substantially limited. As to the major life activity of seeing, the court found the impairment too narrow to qualify: “[a]lthough Diffey’s sight certainly was affected by his color deficiency, his ‘seeing’ was not substantially limited.” (Diffey, supra, 84 Cal.App.4th at p. 1039.) Citing Albertson’s, Inc. v. Kirkingburg, it observed that “[s]ome effect on vision, like blindness in one eye, does not create a disability per se,” and that “[t]he only limitation on ‘seeing’ posed by Diffey’s condition was that it precluded him from working as a deputy sheriff.” (Ibid.)
Working is employment generally, not a single police job. Turning to the activity of working, the court applied Sutton’s single-job principle: an inability to perform one position, even one widely required by similar employers, is not a substantial limitation on working. “‘[A]n otherwise valid job requirement, such as a height requirement [or color blindness], does not become invalid simply because it would limit a person’s employment opportunities in a substantial way if it were adopted by a substantial number of employers.’” (Diffey, supra, 84 Cal.App.4th at p. 1038, quoting Sutton, supra, 527 U.S. at pp. 493–494.) Synthesizing the federal authority, the court held: “a valid job requirement for a deputy sheriff does not translate into disability discrimination even if a substantial number of similar employers adopt it. A person is not substantially limited in the major life activity of working merely because he is prevented from working as a police officer.” (Id. at pp. 1039–1040.) Even if Diffey were “prohibited from working as a deputy sheriff throughout California, it does not mean that the County regarded him as disabled.” (Id. at p. 1040.)
Rejecting the trial court’s and Diffey’s contrary view of Grotefend’s testimony. The trial court had denied JNOV on the theory that Grotefend’s belief that Diffey “could not provide courthouse security, could not serve court papers, [and] could not guard prisoners” showed “the County’s perception of plaintiff was different than reality.” (Diffey, supra, 84 Cal.App.4th at p. 1035.) The Court of Appeal disagreed: read in full, Grotefend “did not view Diffey as disabled,” thought “a blind person would be disabled, not a color-blind person,” and believed Diffey could perform “63 other jobs with the sheriff’s department.” (Id. at p. 1039.) Diffey’s own testimony that he was “‘color dumb’ but not disabled” reinforced the conclusion. (Ibid.) Far from perceiving a sweeping limitation, the County perceived precisely what was true — an inability to meet one valid requirement.
Departing from Real v. City of Compton. Finally, the court declined to follow language in Real v. City of Compton requiring a police-officer plaintiff to “‘demonstrate that he was regarded as precluded from a broad class of jobs, such as the law enforcement field in general.’” (Diffey, supra, 84 Cal.App.4th at p. 1040.) Rather than impose a “broad class of jobs” burden, the court rested directly on Sutton’s rule that a valid requirement “‘does not become invalid simply because it would limit a person’s employment opportunities in a substantial way if it were adopted by a substantial number of employers.’” (Ibid.) On that footing, “Diffey does not have a disability under either prong of the test,” and “the court should have granted defendants’ motion for JNOV and entered judgment in favor of defendants.” (Ibid.)
Significance
Diffey is one of California’s clearest statements that the perceived-disability prong is not a back-door route to liability whenever an employer declines to hire someone with a real physical limitation. The decision draws a bright analytical line: a perception is actionable only when it rests on a “false idea” — the “myths, fears and stereotypes” the disability laws were enacted to combat — and an accurate appraisal of a genuine, job-relevant limitation falls outside the prong entirely. (Diffey, supra, 84 Cal.App.4th at pp. 1037–1039.) For practitioners working with CACI No. 2540’s essential-elements framework, the case is a reminder that the very first element — disability, actual or perceived — can be dispositive, and that the “regarded as” theory imports the same requirement — that the impairment “substantially limit a major life activity” — that governs actual disability.
The opinion also imports Sutton’s single-job principle into the California case law and confirms that police agencies may enforce validated medical and physical standards without converting every rejection into a perceived-disability claim. By rejecting Real v. City of Compton’s “broad class of jobs” formulation in favor of Sutton’s reasoning, Diffey simplified the analysis: the question is not how many jobs the plaintiff is foreclosed from, but whether the employer’s perception was a misperception of substantial limitation. (Id. at p. 1040.) Its limits should be kept in view. Diffey predates the FEHA amendments effective in 2001 and the broadening of disability definitions under the federal ADA Amendments Act of 2008, both of which materially loosened the “substantially limits” standard; the opinion’s heavy reliance on Sutton’s narrow construction must therefore be read against subsequent statutory change. Its core conceptual holding — that a correct judgment of unfitness is not a “regarded as” perception — remains its enduring contribution.
Key quotes
“We hold there is not substantial evidence to support the jury’s finding that the County regarded plaintiff as disabled and reverse the trial court’s order denying defendants’ motion for JNOV.” (Diffey, supra, 84 Cal.App.4th at p. 1034.)
“[I]n order to find a perceived disability, the perception must stem from a false idea about the existence of or the limiting effect of a disability.” (Id. at pp. 1037–1038.)
“Instead, the County did not find him qualified to be a deputy sheriff. But there is no evidence that the County’s treatment of Diffey resulted from myths, fears or stereotypes about color blindness.” (Id. at p. 1039.)
Practice pointer
For defense counsel, Diffey is the template for attacking a “regarded as” claim at the threshold: build a record that the employer’s judgment was accurate and tied to a validated, job-specific requirement, and that the decisionmaker did not believe the applicant was broadly impaired. The deputy who testified Diffey could perform “63 other jobs with the sheriff’s department” was decisive evidence the County perceived no substantial limitation on working. (Diffey, supra, 84 Cal.App.4th at p. 1039.) Where a BFOQ or other validated standard underlies the decision, develop expert proof of validity and seek a jury finding on it — here the jury’s own BFOQ finding undercut the discrimination verdict. (Ibid.) For plaintiff’s counsel, the lesson is to avoid resting a perceived-disability theory on the bare refusal to hire; instead, marshal evidence that the employer’s stated reason masked a stereotyped belief that the condition limited the applicant beyond the specific job, or that the employer treated the applicant as foreclosed from work generally. Because the prong demands a “false idea” rooted in “myths, fears and stereotypes,” the proof must show misperception, not accurate appraisal. (Id. at pp. 1037–1038.) Finally, note that Diffey’s narrow construction of “substantially limits” has been superseded by post-2000 statutory amendments — verify the current standard before relying on it.
Open questions
The disposed-of issues. Because the want of substantial evidence on the “regarded as” finding was dispositive, the court declined to reach the balance of the appeal: “Our decision on this issue eliminates the other issues raised by the parties.” (Diffey, supra, 84 Cal.App.4th at p. 1034.) The propriety of the directed verdict on retaliation, the inconsistent-verdict and instructional grounds for the new-trial order, and the damages award thus remain unadjudicated on the merits.
The four-phase trial structure. The court pointedly disclaimed any view on the unusual phased trial — conducted in four phases “[f]or reasons not readily apparent to the eyes of this court” — leaving open whether sequencing BFOQ and accommodation before the threshold disability question was sound. (Diffey, supra, 84 Cal.App.4th at p. 1035.)
The BFOQ override concern. In a footnote the court flagged but did not resolve a structural tension: “Had the jury decided the color vision requirement was not a BFOQ, this case would have presented the troubling outcome of a jury overriding established professional judgments about the proper qualifications for police work.” (Diffey, supra, 84 Cal.App.4th at p. 1040, fn. 2.) How courts should police that line in future cases was left for another day.