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California Law About Wrongful Termination of Employment

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Essential Job Duties , Disability Discrimination

Essential Job Duties , Disability Discrimination

Essential Job Duties and Disabilities in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

Understanding the concept of essential job duties in the context of disabilities is crucial for employers and employees in California. Employers have a legal obligation to reasonably accommodate employees with disabilities, but there are limitations based on the essential functions of the job. Failure to navigate this complex area of employment law can lead to discrimination claims, including wrongful termination. In this comprehensive overview, we will explore the legal framework surrounding essential job duties, potential legal consequences for employers, and identify problems that may arise, supported by examples and detailed reasoning.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits disability discrimination and requires employers with five or more employees to provide reasonable accommodations to qualified individuals with disabilities. However, it recognizes that accommodations are not required if they would impose an undue hardship or fundamentally alter the nature of the job.

B. Americans with Disabilities Act (ADA): The ADA is a federal law that also mandates reasonable accommodations for qualified individuals with disabilities but applies to employers with 15 or more employees. It shares the concept of essential job functions with the FEHA.

C. Essential Job Functions: Essential job functions refer to the fundamental duties of a job that an employee must be able to perform with or without reasonable accommodation. Identifying these functions is critical in determining whether an accommodation is required or if an undue hardship exists.

II. Legal Consequences:

A. Wrongful Termination Claims: Employees who believe they were wrongfully terminated due to disability discrimination can bring legal claims against their employers. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Legal Defense: Employers can defend themselves against wrongful termination claims by demonstrating that the terminated employee could not perform the essential job functions even with reasonable accommodation.

III. Potential Problems:

A. Identifying Essential Job Functions: Employers and employees may disagree on what constitutes an essential job function. This can lead to disputes and legal challenges when determining whether an accommodation is required or reasonable.

B. Inconsistent Enforcement: Employers must consistently apply their policies regarding essential job functions. Inconsistencies can be used as evidence of discriminatory intent.

C. Unwarranted Assumptions: Employers may make assumptions about an employee’s ability to perform essential job functions based on their disability. These assumptions can lead to wrongful termination claims if not supported by concrete evidence.

IV. Examples:

  1. Identifying Essential Job Functions Example: A paralegal in a law firm is required to draft legal documents and communicate with clients and attorneys. The employer argues that drafting documents is an essential job function, and a paralegal with a severe writing disability is terminated because they cannot perform this task. However, if the paralegal can demonstrate that they can communicate effectively with clients and attorneys through other means (e.g., dictation software), they may have a strong wrongful termination claim.
  2. Inconsistent Enforcement Example: An employer grants telecommuting as a reasonable accommodation for one employee with a mobility impairment but denies the same request for another employee with a similar impairment. This inconsistency can lead to legal challenges, as both employees are requesting the same accommodation for the same reason.

Conclusion

In conclusion, understanding essential job duties in the context of disabilities is essential for employers and employees in California. While employers have a duty to reasonably accommodate disabled employees, they are not required to do so if it would fundamentally alter the job or impose undue hardship. To mitigate risks and ensure compliance with the law, employers should have clear job descriptions that identify essential job functions, consistently apply their policies, and engage in the interactive process with employees to determine appropriate accommodations when necessary.

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

In deciding whether a job duty is essential, you may consider, among other factors, the following:

  1. Whether the reason the job exists is to perform that duty;
  2. Whether there is a limited number of employees available who can perform that duty;
  3. Whether the job duty is highly specialized so that the person currently holding the position was hired for the person’s expertise or ability to perform the particular duty.

Evidence of whether a particular duty is essential includes, but is not limited to, the following:

  1. [Name of defendant]’s judgment as to which functions are essential;
  2. Written job descriptions prepared before advertising or interviewing applicants for the job;
  3. The amount of time spent on the job performing the duty;
  4. The consequences of not requiring the person currently holding the position to perform the duty;
  5. The terms of a collective bargaining agreement;
  6. The work experiences of past persons holding the job;
  7. The current work experience of persons holding similar jobs;
  8. Reference to the importance of the job in prior performance reviews.

“Essential job duties” do not include the marginal duties of the position. “Marginal duties” are those that, if not performed would not eliminate the need for the job, or those that could be readily performed by another employee, or those that could be performed in another way.

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

Directions for Use

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].)

Sources and Authority

  • 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.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 1045–1049

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment and Housing Act (FEHA), ¶¶ 9:2247, 9:2247.1, 9:2247.2, 9:2402–9:2402.1 (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, § 41.97[1] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.22, 115.54, 115.104 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)

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