Green v. State of California
Under the FEHA, the employee bears the burden of proving he or she is a “qualified individual” — able to perform the essential duties of the job with or without reasonable accommodation — not the employer.
Green v. State of California (2007) 42 Cal.4th 254
Disability
Qualified Individual
Burden of Proof
FEHA
Reversed
In brief. Resolving who bears the burden on ability to work, a divided Court held that “under the FEHA, a plaintiff must demonstrate that he or she was qualified for the position sought or held in the sense that he or she is able to perform the essential duties of the position with or without reasonable accommodation.” (Green v. State of California (2007) 42 Cal.4th 254, 260.) The FEHA, “like the ADA,” “allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation,” and the plaintiff must prove the contrary as part of his case. (Id. at pp. 257–258.)
Facts
Dwight Green began working for the State of California in 1974 and, by 1987, was a stationary engineer for the Department of Corrections at the California Institution for Men in Chino, where his duties included “maintenance and repair of equipment and mechanical systems and supervision . . . of a crew of inmates.” (42 Cal.4th at p. 258.) In 1990, Green was diagnosed with hepatitis C, “presumably contracted . . . while working on the sewer pipes at the Institute.” (Ibid.) From 1990 to 1997 he had “no work restrictions,” lost no time, and was “considered a good employee,” receiving letters of commendation describing him as “one of [the supervisor’s] best stationary engineers.” (Ibid.) In 1997, his physician requested that he avoid exposure to certain chemicals; his supervisor initially accommodated him by assigning positions that did not require heavy exposure. (Id. at pp. 258–259.) In 1999, however, the State placed Green on disability leave and ultimately separated him from employment, contending he could not safely perform the job. (Ibid.) Green sued for disability discrimination and failure to accommodate under the FEHA. (Id. at p. 259.)
Procedural history
The case turned on jury instructions allocating the burden of proof on Green’s ability to perform the job’s essential functions. (42 Cal.4th at pp. 259–260.) The Court of Appeal held that inability to perform was an affirmative defense on which the employer bore the burden, and reversed a defense judgment. (Ibid.) The Supreme Court granted review and reversed the Court of Appeal, holding the burden rests on the plaintiff, and remanded for a new trial under proper instructions. (Id. at pp. 260, 266.)
Issue
In a FEHA disability-discrimination action, which party bears the burden of proof on whether the plaintiff can perform the essential duties of the job with or without reasonable accommodation — is ability to perform an element of the plaintiff’s claim, or is inability an affirmative defense for the employer? (42 Cal.4th at pp. 257, 260.)
Holding
The burden is on the plaintiff. “[U]nder the FEHA, a plaintiff must demonstrate that he or she was qualified for the position sought or held in the sense that he or she is able to perform the essential duties of the position with or without reasonable accommodation. Juries should be so instructed.” (42 Cal.4th at p. 260.) Because the FEHA, “like the ADA, . . . allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation,” proof of ability is part of the plaintiff’s case. (Id. at pp. 257–258.) Reversed and remanded. (Id. at p. 266.)
Reasoning
1. The statutory text ties liability to ability. The FEHA prohibits disability discrimination but expressly provides that the prohibition “does not prohibit an employer from . . . discharging an employee with a physical or mental disability . . . [who] is unable to perform his or her essential duties even with reasonable accommodations.” (42 Cal.4th at pp. 260–262, quoting Gov. Code, § 12940, subd. (a)(1).) Reading the statute as a whole, the Court concluded that ability to perform is woven into the definition of unlawful discrimination, not carved out as a separate defense. (Ibid.)
2. The ADA parallel. The Court relied heavily on the analogous federal scheme. The ADA bars discrimination “against a qualified individual” and defines that term as one “who, with or without reasonable accommodation, can perform the essential functions” of the job. (42 Cal.4th at pp. 262–264, quoting 42 U.S.C. §§ 12112(a), 12111(8).) Federal “authority . . . is clear that an employee bears the burden of proving . . . that he or she meets the definition of a ‘qualified individual.’” (Id. at pp. 263–264, citing Cleveland v. Policy Management Systems Corp. (1999) 526 U.S. 795.) Because the FEHA was modeled on the ADA and is generally construed in harmony with it, the Court applied the same allocation. (Ibid.)
3. Legislative and regulatory history. Reviewing the FEHA’s “language, legislative intent, and well-settled law,” the Court found nothing indicating the Legislature intended to depart from the ADA by shifting the qualification burden to employers. (42 Cal.4th at pp. 260–266.) “Qualified individual” status is a threshold element of a disability claim — a plaintiff who cannot perform the essential functions, even with accommodation, has not suffered actionable discrimination. (Ibid.) The Court emphasized that the qualification requirement applies across the related FEHA theories: to “establish” a claim for disability discrimination or for failure to provide reasonable accommodation, the plaintiff must show he or she can perform the essential duties “with or without reasonable accommodation,” mirroring the ADA element a federal plaintiff must prove. (42 Cal.4th at pp. 262–264.) The Court rejected the Court of Appeal’s view that the FEHA and the ADA allocate the burden differently, finding the two statutes materially parallel on this point. (Ibid.)
4. Disposition. Because the jury had not been instructed that Green bore the burden of proving he could perform the essential duties with or without accommodation, the Court reversed and remanded for a new trial “unless the evidence shows as a matter of law that plaintiff cannot meet his burden.” (42 Cal.4th at pp. 265–266.)
5. The dissent. Justice Werdegar, joined by Justices Kennard and Moreno, dissented. She framed the issue as “simple”: whether “ability to perform [is] an element of the plaintiff’s cause of action or is inability to perform an affirmative defense for the employer.” (42 Cal.4th at p. 267 (dis. opn. of Werdegar, J.).) In her view, “established principles of statutory interpretation demonstrate that the reading best according with legislative intent is that inability to perform the job’s essential duties is a defense on which employers have the burden of proof.” (Ibid.) She charged the majority with “ignor[ing] the statute’s structure” — because section 12940, subdivision (a)(1), is framed as an exception relieving employers from liability, the inability to perform should be the employer’s defense to prove, not the plaintiff’s element to negate. (Id. at pp. 267–270.) Invoking a settled interpretive canon, she reasoned that “[t]he burden of proof on an exception ordinarily lies with the party invoking the exception” — here, the employer. (Id. at p. 269.) She also faulted the majority for a “single logical error”: that the statute’s relieving employers of liability when a disability prevents essential performance does not, by itself, make ability to perform “part of the plaintiff’s case.” (Id. at pp. 267–268.) The split thus reflects a genuine clash between the statute’s text (the majority’s anchor) and its structure as an exception (the dissent’s). (Id. at pp. 260–270.)
Significance
Green is the controlling California authority on the burden of proof in FEHA disability cases, and it is notably employer-favorable: the plaintiff must affirmatively prove he or she is a “qualified individual” able to perform the essential job functions with or without accommodation. The decision is reflected in the standard jury instructions (CACI Nos. 2541, 2543) and frames every disability-discrimination and failure-to-accommodate trial. It must be read together with the cases that allocate the accommodation and interactive-process burdens, such as Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952 and Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, which clarify what the plaintiff must show about the existence of an available accommodation. The sharp 4–3 split, and the dissent’s structural reading, mark the qualified-individual burden as one of the more contested allocations in California disability law. See the Review’s coverage of the disability line.
Key quotes
“[U]nder the FEHA, a plaintiff must demonstrate that he or she was qualified for the position sought or held in the sense that he or she is able to perform the essential duties of the position with or without reasonable accommodation. Juries should be so instructed.” (Green, supra, 42 Cal.4th at p. 260.)
The FEHA, “like the ADA, . . . allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation.” (Id. at pp. 257–258.)
“[I]nability to perform the job’s essential duties is a defense on which employers have the burden of proof.” (Id. at p. 267 (dis. opn. of Werdegar, J.).)
Read the full opinion (California Supreme Court — full text) →
Practice pointer
Plaintiffs must own the qualification element. After Green, a FEHA disability plaintiff has to prove — and a jury must be instructed — that the plaintiff could perform the essential job functions with or without reasonable accommodation; do not assume the employer must prove inability. Build the record early: identify the essential functions, marshal medical evidence of capacity, and specify the accommodation(s) that would enable performance. Distinguish the discrete burdens — Green governs qualification, while Nadaf-Rahrov and Scotch address what the plaintiff must show about an available accommodation and the interactive process. Defendants should request a Green-based instruction and test the plaintiff’s qualification proof at summary judgment.
Open questions
How the plaintiff’s qualification burden under Green interacts with the employer’s obligations in the interactive process — and who must identify a specific available accommodation — continues to be litigated, as Nadaf-Rahrov and Scotch illustrate. The dissent’s structural critique also leaves a live academic debate over whether the Legislature intended inability to perform to operate as an employer defense, a question that periodic FEHA amendments could revisit.