California’s Fair Employment and Housing Act (“FEHA”) makes it
unlawful to refuse to hire, discharge, or discriminate against a person because of their physical or mental disability or medical condition.[1] Courts have interpreted the term “to discriminate” as used in that context to mean “to treat differently.”[2] An employer “has treated an employee differently ‘because of’ a disability when the disability is a substantial motivating reason for the employer’s decision to subject the employee to an adverse employment action.”[3]
The FEHA, however, does not prohibit an employer from discharging an employee with a physical or mental disability “where the employee, because his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations.”[4]
Thus, “[i]n order to prevail on a discriminatory discharge claim under section 12940(a), an employee bears the burden of showing (1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without accommodation (in the parlance of the [ADA], that he or she is a qualified individual with a disability).”[5]
Disability discrimination claims under the FEHA are “fundamentally different” than discrimination claims based upon factors such race, sex and age.[6] As the court noted in Zamora v. Security Industry Specialists, Inc., [t]hese differences arise because (1) additional statutory provisions apply to disability discrimination claims, (2) the Legislature made separate findings and declarations about protections given to disabled persons, and (3) discrimination cases involving race, religion, national origin, age and sex, often involve pretexts for the adverse employment action—an issue about motivation that appears less frequently in disability discrimination cases.”[7]
For example, in discrimination claims based on race, age or sex, “an employer’s honest but mistaken belief in legitimate reasons for an adverse employment action can preclude liability.”[8] However, with respect to disability discrimination, the FEHA provides protection even “when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.”[9]
In v. County of Stanislaus, the plaintiff alleged disability discrimination after the defendant removed him from his job as bailiff and placed him on unpaid leave of absence.[10] The plaintiff claimed that the defendant’s actions were due to its incorrect assessment that he could not safely perform his duties as bailiff, even with reasonable accommodation.[11] The trial court found that the plaintiff was required to prove animus or ill will in order to prevail.[12] On appeal, the court rejected that argument, holding that “[t]he proper standard regarding employer intent or motivation was decided by our supreme court in Harris v. City of Santa Monica[13].” Under Harris, the plaintiff was required to show that his actual or perceived disability was a “substantial motivating factor” for the defendant’s decision to place him on a leave of absence.[14]
Furthermore, the Wallace court held that “California law does not require an employee with an actual or perceived disability to prove that the employer’s adverse employment action was motivated by animosity or ill will against the employee.”[15] Instead, California law protects employees from an employer’s erroneous or mistaken beliefs about the employee’s physical condition.[16] “In short, the Legislature decided that the financial consequences of an employer’s mistaken belief that an employee is unable to safely perform a job’s essential functions should be borne by the employer, not the employee, even if the employer’s mistake was reasonable and made in good faith.”[17]
[1] Cal Gov’t Code § 12940(a).
[2] Wallace v. Cnty. Of Stanislaus, 245 Cal.App.4th 109, 126 (2016).
[3] Id. at 128.
[4] Cal. Gov’t Code § 12940(a)(1); Moore v. Regents of Univ. of Cal., 248 Cal.App.4th 216, 231–232 (2016).
[5] Nadaf–Rahrov v. Neiman Marcus Grp., Inc., 166 Cal.App.4th 952, 962 (2008).; see also Green v. State of California, 42 Cal.4th 254, 262 (2007).
[6] Zamora v. Sec. Indus. Specialists, Inc., 71 Cal.App.5th 1, 33 (2021).
[7] (Id. at 122.)
[8] Wallace, 245 Cal.App.4th at 124. (quoting Cal. Gov’t Code § 12926.1(d)).
[9] Wallace, 245 Cal.App.4th at 124 (quoting Cal. Gov’t Code § 12926.1 (d)).
[10] Wallace, 245 Cal.App.4th at 115.
[11] Id.
[12] Id.
[13] Id. at 115; see Harris v. City of Santa Monica, 56 Cal.4th 203 (2013).
[14] Harris, 56 Cal.4th at 232.
[15] Wallace, 245 Cal.App.4th at 115.
[16] Id.; Cal. Gov’t Code § 12926.1(d).
[17] Id.; see also Zamora v. Sec. Indus. Specialists, Inc.,71 Cal.App.5th 1, 33 (2021).