lklibanow@lindaklibanow.com
(626) 204-4000

California Court of Appeal Clarifies Proper Jury Instruction on Employer Intent to Discriminate Against Disabled Employee

In its February 25, 2016 decision in Wallace v. County of Stanislaus, 2016 DJDAR 1932,  the California Court of Appeal for the 5th Appellate District, with the benefit of the California Supreme Court’s decision in  Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, and ensuing modifications to CACI Nos. 2507 and 2540,  held that the trial court imposed an erroneous and prejudicial jury instruction which failed to recognize critical respects in which disability discrimination claims are fundamentally different from discrimination claims based on other factors listed in Government Code Section 12940(a).  Carefully explaining its ruling, the court began by remarking that, whereas in many non-disability discrimination cases there is no direct evidence but only circumstantial evidence of employer discriminatory motive entailing the “three-stage burden-shifting test established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792,  in contrast

“…disability discrimination cases often involve direct evidence of the role of the employee’s actual or perceived disability in the employer’s decision to implement an adverse employment action.”

In this context the court noted the potential ambiguity of the key terms “discriminate” and “animus.”[1]  Thus, in a disability discrimination case, “treating a physically disabled person differently from persons who are not disabled is not automatically wrong;”  indeed, the court of appeal noted, citing Green, “in disability discrimination actions, the plaintiff has not shown the defendant has done anything wrong until the plaintiff can show he or she was able to do the job with or without reasonable accommodation.”

Consequently, observed the court, whereas, in nondisability discrimination cases the litigation often focuses upon the employer’s reasons for the adverse action,

“the parties’ disputes in disability cases focus on whether the employee was able to perform essential job functions, whether there were reasonable accommodations that would have allowed the employee to perform those actions, and whether a reasonable accommodation would have imposed an undue hardship on the employer.”

 

The court also remarked that Government Code Section 12926.1(d) specifically provides  for employee protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.

In the first trial before the lower court a jury found that the defendant treated the plaintiff as if he had a disability limiting his ability to engage in a major life activity, that plaintiff was able to perform his essential job duties with or without reasonable accommodation, and that defendant failed to prove that plaintiff would endanger himself or others in performing his essential job duties (as deputy sheriff); due to an erroneous jury instruction, the first jury, nevertheless, resolved the disability discrimination cause of action in favor of defendant.

On appeal the court found “the evidence allows this court to find as a matter of law that [plaintiff] established the substantial-motivating-reason element of his disability discrimination cause of action”[2] and remanded solely as to economic damages.

[1] The court held that terms such as “animus” and “ill will” were betterrestricted to employment discrimination cases involving proof of an illegitimate motive by circumstantial evidence.  The court rejected the County’s argument that animus or “intention exceeding a substantial motivating factor” was an essential element of the plaintiff’s disability discrimination cause of action.

[2] “…[W]e conclude there is no dispute that County’s motive for placing Wallace on a leave of absence was its mistaken perception that his physical condition created a safety issue. It logically follows that County’s perception of Wallace’s physical condition was a substantial motivating reason for County’s decision to place Wallace on a leave of absence.” California Code of Regulations Title 2 Section 11068(c) (when employee can work with reasonable accommodation other than leave of absence, employer may not require employee to take leave of absence.)  “…[W]hat County describes as legitimate business reasons actually were erroneous reasons based on County’s mistaken belief about Wallace’s ability to perform his job safely.”