Disability discrimination intent
What is unlawful disability discrimination?
On February 25, 2016, the Fifth District Court of Appeal decided the proper way to instruct a jury on the employer’s intent to discriminate against a disabled employee. In Wallace v. County of Stanislaus (Feb. 25, 2016, No. F068068) 2016 Cal. App. LEXIS 148, the issue was what role animus plays in defining that intent.
In this case, Mr. Wallace worked for the County as a Deputy Sheriff. He suffered an injury to his left knee on the job. A qualified medical evaluator placed restrictions on Mr. Wallace with respect to walking and standing. The County offered Mr. Wallace an assignment as a bailiff. While he was performing that job another evaluator advised limitations for lifting and other physical movements. Based on this evaluation, the County took the position that there was no modified or alternative work duty available, and then removed Mr. Wallace from his bailiff position and placed him on a leave of absence.
Mr. Wallace sued his employer for disability discrimination under the California Fair Employment and Housing Act (FEHA). The case went to trial, where a jury found that the County treated Mr. Wallace as a qualified disabled person, Mr. Wallace was able to perform the essential duties of his job with or without a reasonable accommodation, and the County did not prove that Mr. Wallace would endanger himself or others in carrying out his essential duties. The jury also answered “no” to the question “Did the County of Stanislaus regard or treat Dennis Wallace as having a physical disability in order to discriminate?” Consequently, the jury found in favor of the County on the disability discrimination claim.
On appeal, Mr. Wallace contended there was jury instruction error. The Wallace court began with a review of the FEHA language. The appellate court determined that while the wording of the law suggests that disability discrimination is similar to other forms of discrimination, this suggestion is misleading for three reasons.
First, discrimination for reasons others than disability (e.g., race, age, sex) often requires proof by circumstantial evidence, with intent being the only disputed issue. In contrast, in many disability discrimination cases there is direct evidence of unlawful intent, and the disputed issues are whether the employee can perform essential job duties and whether there is a reasonable accommodation to allow this performance without an undue hardship on the employer.
Second, the Legislature declared that FEHA is intended to protect employees from discrimination based on actual or perceived disabilities, and that the law applies when an employer erroneously or mistakenly believes that an employee has a disability. Third, there is a statutory provision that implements this declaration by protecting employees if they are regarded or treated as having a disability. In contrast, an employer’s honest but mistaken belief in legitimate reasons for an adverse action may preclude liability for other forms of discrimination.
Next, the appellate court decided what the FEHA term “discriminate” means. For discrimination other than based on disability, it is simply when an employer treats employees differently based on race, etc. But in the disability context, an employer may lawfully treat disabled employees differently than other employees. For example, when the employee cannot perform the essential functions of his job or an accommodation cannot be provided without causing an undue hardship on the employer.
The appellate court then addressed what the FEHA phrase “because of” means in a disability claim. It reviewed the Harris v. City of Santa Monica (2013) 56 Cal.4th 203 decision that established the “substantial motivating factor” standard. The court in Wallace noted that the Harris court discussed motivation without using the terms animosity or ill will. Therefore, it concluded that an employer can discriminate based on disability without animosity or ill will, and that an employer has treated an employee differently “because of” a disability when the disability is a substantial motivating reason for the employer’s adverse employment action.
Having determined the meaning of “discriminate” and “because of,” the court of appeal addressed the jury instruction error question. It decided that where an employee is found to be able to safely perform the essential duties of the job, the employee need only prove that (1) the employer knew or perceived that the employee had a disability, and (2) the employee’s actual or perceived disability was a substantial motivating reason for the adverse employment action. Therefore, the jury instruction that Mr. Wallace was required to prove that the County “regarded or treated [him] as having a disability in order to discriminate” was erroneous.
The appellate court concluded by noting that “animus” is an imprecise term that can mean intent (which is consistent with the substantial motivating reason standard) or animosity and ill will. As such, it can cause confusion when used in disability discrimination cases with direct evidence of the employer’s motive. The court of appeal advised courts and attorneys to limit their use of the terms “animus” and “ill will” to employment discrimination cases involving proof of an illegitimate motive by circumstantial evidence.