Friday, August 29, 2008

Employee Has the Burden of Proof in Disability Discrimination

As if to add to the rather unfavorable decision for employees concerning meal and rest break claims, the California Supreme Court recently held that an employee who alleges that he has been discriminated against has the burden of proof to establish that he can carry out duties in work with or without reasonable accommodation.

This decision was handed down in the case of Green v. State of California. The Court, in effect, is saying that it is not incumbent upon the employer to show whether the complaining employee was unqualified in order to avoid liability but of the employee’s to show that he was indeed being discriminated against because of his disability.

The Supreme Court in this case disagreed to the contention adopted by the Court of Appeals, which puts the burden of proving discrimination on the part of the employer.

The Court said that “the Legislature has placed the burden on the plaintiff to show that he is a qualified individual under the FEHA (i.e. that he can perform the essential functions of the job with or without reasonable accommodation. As explained further below, legislative intent, case law, and legislative history support defendant’s position – a view that also finds support in Evidence Code section 500, which requires a plaintiff to prove each fact essential to the claim for relief he is asserting.”

The Court first held that FEHA clearly provides that the "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."

Green case can be considered a victory for the employers. However, we should not fail to see that it still give emphasis to the need of carefully evaluating whether an employee who suffers from disability is able to perform the essential functions of their position with or without accommodation before making any decision like firing, transferring, demoting, hiring, etc.