CALIFORNIA SUPREME COURT CLARIFIES THE EMPLOYEE'S BURDEN OF PROOF IN A DISABILITY DISCRIMINATION CLAIM

In Green v. State of California (S137770) (to see the opinion filed August 23, 2007, click here), the Supreme Court held that in an employee's action for discrimination based on disability under the Fair Employment and Housing Act (FEHA), it is the burden of the employee to prove that he or she can perform the essential functions of the job with or without reasonable accommodation. In reaching this result, the Court rejected the argument that the employee's inability to perform those functions, even with reasonable accommodation, was an affirmative defense as to which the employer has the burden of proof. The decision thereby conforms the FEHA to its federal counterpart, the Americans with Disabilities Act (ADA).

Following several months of disability leave for a back injury, an employee sought to return to his prior position in a Department of Corrections facility. However, an earlier medical report had placed restrictions on the employee's ability to work because of his treatment for Hepatitis C. The Department of Corrections decided that he was incapable of performing his duties unless he was cleared for full duty.

In a majority opinion joined by three other justices, Justice Chin observed that in a disability discrimination action, the plaintiff has not shown the defendant did anything wrong until the plaintiff first shows he or she was able to do the job with reasonable accommodation. The Court reversed a judgment for the employee because of inadequate instruction concerning the burden of proof on this issue.

For additional information, contact Daniel Gonzalez at (818) 995-0800 or dgonzalez@horvitzlevy.com.

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