Green

I respectfully dissent.

The issue in this case is simple: In an action for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), 1 which party bears the burden of proving that the plaintiff’s disability did or did not prevent the plaintiff from performing the essential duties of the job? Is ability to perform an element of the plaintiff’s cause of action or is inability to perform an affirmative defense for the employer? As I explain below, although the statutory language at issue (§ 12940, subd. (a)(1)) does not expressly assign the burden of proof, established principles of statutory interpretation demonstrate that the reading best according with legislative intent is that inability to perform the job’s essential duties is a defense on which employers have the burden of proof.

To reach its contrary conclusion, the majority ignores the statute’s structure, distorts its legislative and regulatory history, and relies on inapposite authority. But fundamentally, a single logical error pervades the majority’s discussion. Because section 12940, subdivision (a)(1) relieves employers from liability for firing or refusing to…

The Americans with Disabilities Act of 1990 (ADA; 42 U.S.C. § 12101 et seq.) requires that plaintiffs prove they are “qualified individuals” under the statute, i.e., that they have the ability to perform a job’s essential duties before they can prevail in a lawsuit for discrimination. ( 42 U.S.C. § 12112 (a).) Although the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)) 1 does not expressly include the term “qualified individual,” the question here is whether it includes a similar requirement. In 1997, a Court of Appeal held that it does. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235 [ 66 Cal.Rptr.2d 830 ] (Brundage).) The Court of Appeal here held that it does not.

The FEHA prohibits discrimination against any person with a disability but, like the ADA, provides that the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation. (§ 12940, subd. (a)(1); 42 U.S.C. § 12112 (a).) After reviewing the statute’s *258 language, legislative intent, and well-settled law, we conclude the FEHA requires employees to prove that…

The Americans with Disabilities Act (ADA) requires that plaintiffs prove they are "qualified individuals" under the statute, i.e., that they have the ability to perform a job's essential duties before they can prevail in a lawsuit for discrimination. ( 42 U.S.C. § 12112 (a).) Although California's Fair Employment and Housing Act (Gov.Code, § 12900 et seq. (FEHA)) [1] does not expressly include the term "qualified individual," the question here is whether it includes a similar requirement. In 1997, a Court of Appeal held that it does. ( Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235 , 66 Cal.Rptr.2d 830 ( Brundage ).) The Court of Appeal here held that it does not.

The FEHA prohibits discrimination against any person with a disability but, like the ADA, provides that the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation. (§ 12940, subd. (a)(1); 42 U.S.C. § 12112 (a).) After reviewing the statute's language, legislative intent, and well-settled law, we conclude the FEHA requires employees to prove that they are qualified individuals under…