The California Supreme Court today issued a 4-3 decision in the case of Green v. State of California, resolving a split in authority regarding the burden of proof in disability discrimination cases under the Fair Employment and Housing Act (the "FEHA"). It is now settled that a plaintiff alleging disability discrimination under the FEHA must prove that s/he was qualified to perform the essential functions of the job, with or without reasonable accommodation. The defendant does not have to affirmatively prove that the plaintiff was unqualified in order to avoid liability.

In this case, the plaintiff (Green) went on disability leave in November of 1999 for issues related to an industrial injury. After Green was cleared to return to work without restriction in July of 2000, the employer’s return to work coordinator reviewed Green’s file and found a 1997 medical report recommending that Green be given light duty only for issues involving a separate medical condition (hepatitis C). Based on the 1997 report, the coordinator concluded that Green should not have been cleared to return for full duty work.

Green met with the coordinator and the employer’s associate warden of business services that same day, and complained of fatigue caused by the hepatitis. The coordinator informed Green that, based on the 1997 report, Green was unable to perform his duties and could not return to work. They discussed various options, and Green initially decided to take disability retirement. Green later received a letter stating that he would not be allowed to return to his position unless he was cleared for full duty. Green later requested to return to work (apparently without submitting a full-duty clearance), and was denied. He began litigation, claiming disability discrimination in violation of the FEHA.

At trial, the employer asked the judge to instruct the jury that Green had to prove that he was qualified for his job in order to establish any liability under the FEHA, but the judge refused. The California Supreme Court found that this was reversible error.

The Court first held that the plain language of FEHA itself makes it clear that "drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, drawing these distinctions is prohibited only if the adverse employment action occurs because of a disability and the disability would not prevent an employee from performing the essential duties of the job, at least not without reasonable accommodation." Therefore, the FEHA on its face requires that a plaintiff alleging disability discrimination affirmatively show that s/he was able to perform his/her essential duties with or without reasonable accommodation.

The Court then noted that its reading of the FEHA is consistent with the Legislature’s intent 1992 amend of the FEHA to conform with the ADA’s standard for protecting employees from disability discrimination. (Plaintiffs suing for disability discrimination under the ADA also must affirmatively prove their qualification for their position.) Finally, the Court also found its holding consistent with the general rule that a plaintiff bears the burden of proving all of the essential elements of his/her claim.

The Court found that the trial judge’s failure to instruct the jury on this element of liability was prejudicial, and remanded the case to the trial court. Although the Green case is a win for employers, it underscores the continued importance of carefully evaluating whether an employee suffering from a disability is able to perform the essential functions of their position with or without accommodation before making any employment decisions.