Conclusion<\/p>\n\n\n\n
In conclusion, disability discrimination in the context of wrongful termination in California is a serious legal matter. Employers must be aware of their obligations under the FEHA and ADA, including providing reasonable accommodations and avoiding discriminatory practices. Failure to do so can result in costly legal consequences, including potential liability for wrongful termination and other forms of discrimination. To mitigate risks, employers should educate themselves and their employees about disability rights and maintain consistent, non-discriminatory practices in the workplace.<\/p>\n\n\n\n
Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen. <\/p>\n\n\n\n
2540<\/strong>. <\/strong>Disability Discrimination\u2014Disparate Treatment\u2014Essential Factual Elements<\/strong><\/strong><\/p>\n\n\n\n [<\/strong>Name of plaintiff<\/em>] claims that [<\/strong>name of defendant<\/em>] wrongfully discriminated against [him\/her\/<\/strong>nonbinary pronoun<\/em>] based on [his\/her\/<\/strong>nonbinary pronoun<\/em>] [history of [a]] [<\/strong>select term to describe basis of limitations, e.g., physical condition<\/em>]. To establish this claim, [<\/strong>name of plaintiff<\/em>] must prove all of the following:<\/strong><\/strong><\/p>\n\n\n\n [or]<\/strong><\/strong><\/p>\n\n\n\n [That [<\/strong>name of defendant<\/em>] subjected [<\/strong>name of plaintiff<\/em>] to an adverse employment action;]<\/strong><\/strong><\/p>\n\n\n\n [or]<\/strong><\/strong><\/p>\n\n\n\n [That [<\/strong>name of plaintiff<\/em>] was constructively discharged;]<\/strong><\/strong><\/p>\n\n\n\n [<\/strong>Name of plaintiff<\/em>] does not need to prove that [<\/strong>name of defendant<\/em>] held any ill will or animosity toward [him\/her\/<\/strong>nonbinary pronoun<\/em>] personally because [he\/she\/<\/strong>nonbinary pronoun<\/em>] was [perceived to be] disabled. [On the other hand, if you find that [<\/strong>name of defendant<\/em>] did hold ill will or<\/strong><\/strong><\/p>\n\n\n\n animosity toward [<\/strong>name of plaintiff<\/em>] because [he\/she\/<\/strong>nonbinary pronoun<\/em>] was [perceived to be] disabled, you may consider this fact, along with all the other evidence, in determining whether [<\/strong>name of plaintiff<\/em>]\u2019s [history of [a]] [<\/strong>e.g., physical condition<\/em>] was a substantial motivating reason for [<\/strong>name of defendant<\/em>]\u2019s [decision to [discharge\/refuse to hire\/[<\/strong>other adverse employment action<\/em>]] [<\/strong>name of plaintiff<\/em>]\/conduct].]<\/strong><\/strong><\/p>\n<\/div>\n\n\n\n New September 2003; Revised June 2006, December 2007, April 2009, December<\/em><\/p>\n\n\n\n 2009, June 2010, June 2012, June 2013, December 2014, December 2016, May<\/em><\/p>\n\n\n\n 2019, May 2020<\/em><\/p>\n\n\n\n Directions for Use<\/strong><\/strong><\/p>\n\n\n\n Select a term to use throughout to describe the source of the plaintiff\u2019s limitations. It may be a statutory term such as \u201cphysical disability,\u201d \u201cmental disability,\u201d or \u201cmedical condition.\u201d (See Gov. Code, \u00a7 12940(a).) Or it may be a general term such as \u201ccondition,\u201d \u201cdisease,\u201d or \u201cdisorder.\u201d Or it may be a specific health condition such as \u201cdiabetes.\u201d<\/p>\n\n\n\n In the introductory paragraph and in elements 3 and 6, select the bracketed language on \u201chistory\u201d of disability if the claim of discrimination is based on a history of disability rather than a current actual disability.<\/p>\n\n\n\n For element 1, the court may need to instruct the jury on the statutory definition of \u201cemployer\u201d under the FEHA. Other covered entities under the FEHA include labor organizations, employment agencies, and apprenticeship training programs. (See Gov. Code, \u00a7 12940(a)\u2013(d).)<\/p>\n\n\n\n This instruction is for use by both an employee and a job applicant. Select the appropriate options in elements 2, 5, and 6 depending on the plaintiff\u2019s status.<\/p>\n\n\n\n Modify elements 3 and 6 if the plaintiff was not actually disabled or had a history of disability, but alleges discrimination because the plaintiff was perceived to be disabled. (See Gov. Code, \u00a7 12926(o); see also Gov. Code, \u00a7 12926(j)(4), (m)(4) [mental and physical disability include being regarded or treated as disabled by the employer].) This can be done with language in element 3 that the employer \u201ctreated [name of plaintiff<\/em>] as if [he\/she\/nonbinary pronoun<\/em>] . . .\u201d and with language in element 6 \u201cThat [name of employer<\/em>]\u2019s belief that \u201d<\/p>\n\n\n\n If the plaintiff alleges discrimination on the basis of the plaintiff\u2019s association with someone who was or was perceived to be disabled, give CACI No. 2547, Disability- Based Associational Discrimination\u2014Essential Factual Elements. <\/em>(See Rope v. Auto- Chlor System of Washington, Inc. <\/em>(2013) 220 Cal.App.4th 635, 655\u2013660 [163 Cal.Rptr.3d 392] [claim for \u201cdisability based associational discrimination\u201d adequately pled].)<\/p>\n\n\n\n If medical-condition discrimination as defined by statute (see Gov. Code, \u00a7 12926(i)) is alleged, omit \u201cthat limited [insert major life activity<\/em>]\u201d in element 3. (Compare<\/p>\n\n\n\n Gov. Code, \u00a7 12926(i) with Gov. Code, \u00a7 12926(j), (m) [no requirement that medical condition limit major life activity].)<\/p>\n\n\n\n Regarding element 4, it is now settled that the ability to perform the essential duties of the job, with or without reasonable accommodation, is an element of the plaintiff\u2019s burden of proof. (See Green v. State of California <\/em>(2007) 42 Cal.4th 254, 257\u2013258 [64 Cal.Rptr.3d 390, 165 P.3d 118].)<\/p>\n\n\n\n Read the first option for element 5 if there is no dispute as to whether the employer\u2019s acts constituted an adverse employment action. Read the second option and also give CACI No. 2509, \u201cAdverse Employment Action\u201d Explained<\/em>, 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 5 and also give CACI No. 2510, \u201cConstructive Discharge\u201d Explained<\/em>. Select \u201cconduct\u201d in element 6 if either the second or third option is included for element 5.<\/p>\n\n\n\n Element 6 requires that the disability be a substantial motivating reason for the adverse action. (See Harris v. City of Santa Monica <\/em>(2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, \u201cSubstantial Motivating Reason\u201d Explained<\/em>.)<\/p>\n\n\n\n Give the optional sentence in the last paragraph if there is evidence that the defendant harbored personal animus against the plaintiff because of the plaintiff\u2019s disability.<\/p>\n\n\n\n If the existence of a qualifying disability is disputed, additional instructions defining \u201cphysical disability,\u201d \u201cmental disability,\u201d and \u201cmedical condition\u201d may be required. (See Gov. Code, \u00a7 12926(i), (j), (m).)<\/p>\n\n\n\n Sources and Authority<\/strong><\/strong><\/p>\n\n\n\n a plaintiff must show \u2018 \u201c \u2018 \u201cactions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion . . . .\u201d \u2019 \u201d . . .\u2019 The prima facie burden is light; the evidence necessary to sustain the burden is minimal. As noted above, while the elements of a plaintiff\u2019s prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference <\/em>of discrimination.\u201d (Sandell v. Taylor-Listug, Inc. <\/em>(2010) 188 Cal.App.4th 297, 310 [115 Cal.Rptr.3d 453], original italics, internal citations omitted.)<\/p>\n\n\n\n U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668].\u201d (Wallace v. County of Stanislaus<\/em><\/p>\n\n\n\n (2016) 245 Cal.App.4th 109, 123 [199 Cal.Rptr.3d 462], original italics, footnote and internal citations omitted.)<\/p>\n\n\n\n employer to show that it had a legitimate, nondiscriminatory reason for its employment decision. When this showing is made, the burden shifts back to the employee to produce substantial evidence that employer\u2019s given reason was either \u2018untrue or pretextual,\u2019 or that the employer acted with discriminatory animus, in order to raise an inference of discrimination.\u201d (Furtado v. State Personnel Bd. <\/em>(2013) 212 Cal.App.4th 729, 744 [151 Cal.Rptr.3d 292], internal citations omitted.)<\/p>\n\n\n\n 12940, subdivision (m), for failure to make reasonable accommodation, including reassignment. In connection with a discrimination claim under section 12940, subdivision (a), the court considers whether a plaintiff could perform the essential functions of the job held\u2014or for job applicants, the job desired\u2014with or without reasonable accommodation.\u201d (Atkins v. City of Los Angeles <\/em>(2017) 8 Cal.App.5th 696, 716\u2013717 [214 Cal.Rptr.3d 113].)<\/p>\n\n\n\n To prevail on summary adjudication of the section 12940(a) claim, [defendant] must show there is no triable issue of fact about [plaintiff]\u2019s ability, with or without accommodation, to perform the essential functions of an available vacant position that would not be a promotion.\u201d (Nadaf-Rahrov v. The Neiman Marcus Group, Inc. <\/em>(2008) 166 Cal.App.4th 952, 965 [83 Cal.Rptr.3d 190], original italics, internal citations omitted.)<\/p>\n\n\n\n statutory language does not expressly restrict FEHA\u2019s protections to the narrow class to whom [defendant] would limit its coverage. To impose such a restriction would exclude from protection a large group of individuals, like [plaintiff], with more mundane long-term medical conditions, the significance of which is exacerbated by an employer\u2019s failure to reasonably accommodate. Both the policy and language of the statute offer protection to a person who is not actually disabled, but is wrongly perceived to be. The statute\u2019s plain language leads to the conclusion that the \u2018regarded as\u2019 definition casts a broader net and protects any <\/em>individual \u2018regarded\u2019 or \u2018treated\u2019 by an employer \u2018as having, or having had, any physical condition that makes achievement of a major life activity difficult\u2019 or may do so in the future. We agree most individuals who sue exclusively under this definitional prong likely are and will continue to be victims of an employer\u2019s \u2018mistaken\u2019 perception, based on an unfounded fear or stereotypical assumption. Nevertheless, FEHA\u2019s protection is nowhere expressly premised on such a factual showing, and we decline the invitation to import such a requirement.\u201d (Gelfo v. Lockheed Martin Corp. <\/em>(2006) 140 Cal.App.4th 34, 53 [43 Cal.Rptr.3d 874], original italics, internal citations omitted.)<\/p>\n\n\n\n <\/p>\n\n\n\n concerns or fear about his possible future disability. The relevant FEHA definition of an individual regarded as disabled applies only to those who suffer certain specified physical disabilities or those who have a condition with \u2018no present disabling effect\u2019 but which \u2018may become a physical disability \u2019<\/p>\n\n\n\n According to the pleadings, [defendant] fired [plaintiff] to avoid accommodating him because of his association with his physically disabled sister. That is not a basis for liability under the \u2018regarded as\u2019 disabled standard.\u201d (Rope, supra<\/em>, 220 Cal.App.4th at p. 659, internal citations omitted.)<\/p>\n\n\n\n those facts.\u201d \u2019 \u201d (Soria v. Univision Radio Los Angeles, Inc. <\/em>(2016) 5 Cal.App.5th 570, 592 [210 Cal.Rptr.3d 59].)<\/p>\n\n\n\n<\/td><\/tr> <\/td> <\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n
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