Disability Discrimination Plaintiff Suing Under FHEA Must Prove Quification for Job

The Supreme Court Holds That The Plaintiff Has the Burden of Proof of Qualification for Job

Green v. State of California (Aug. 23, 2007, S137770, Supreme Court)
30 page opinion (15 page majority opinion, 15 page dissent)

California's Fair Employment and Housing Act (FEHA), like the Americans with Disabilities Act (ADA), requires plaintiffs to prove that they are "qualified individuals" in order to prove disability discrimination in employment. Thus the burden is on the plaintiff to prove that he or she can perform the essential functions of the job with or without reasonable accommodations.

The ADA defines the term "qualified individual with a disability" to mean "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." The majority compares this definition with language in FEHA which states that it is unlawful for "an employer, because of the . . . physical disability, mental disability, medical condition . . . of any person . . .to bar or discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions or privileges of employment."

FEHA further states that: "This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations."

The majority concludes that making employment decisions based upon a disability are not prohibited in and of themselves. Only adverse decisions that are made because of a disability and are directed against employees (or potential employees) who would be able to perform the job with reasonable accommodation are forbidden. It follows then, that in order to establish disability discrimination the plaintiff must prove his or her ability to do the job (with or without reasonable accommodations) in order to state a claim.
Justice Chin wrote the opinion. Chief Justice George, and Justices Baxter and Corrigan concurred.

Justice Werdegar dissented. Justices Kennard and Moreno concurred with the dissent.
In a vigorous dissent Justice Werdegar stated that she would hold that ability to perform the job is not an element of the plaintiff's cause of action. Instead, the inability of the plaintiff to perform the job, with or without reasonable accommodation, is an affirmative defense which the defendant must plead and prove. The dissent criticized the majority for creating a presumption that people with disabilities cannot perform in the workplace.

Comment: The majority clearly found benefit in harmonizing FEHA with the ADA. Because the issue was not before them neither the majority opinion nor the dissent mentioned Sutton v. United Air Lines (1999) 527 US 471. In that decision the Supreme Court addresses the definition of the "individual with a disability" portion of the ADA's definition of a "qualified individual." The interesting question of whether that interpretation of the ADA will affect future interpretations of FEHA remains open.