Disability Discrimination Law Defense Lawyer DFEH FEHA

Definition, Illegal under both California and federal law, an employer may not discriminate against an employee because the employee has a mental or physical disability. (Gov. Code, §12940, subd. (a).)


Disparate treatment discrimination happens when an employee is specifically targeted or singled out because of their protected characteristic. In these kinds of cases, the employer’s actions must be motivated by discriminatory intent. (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 737.)


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Laws Protecting Against Disability Discrimination

The California statute prohibiting disability discrimination is the Fair Employment and Housing Act (“FEHA”). (Gov. Code, § 12940, et seq.)

The federal counterpart to FEHA, the Americans with Disabilities Act (“ADA”) (42 U.S.C., § 12101, et seq.), also protects against employment discrimination based on a person’s disability.

Because FEHA and ADA have the same anti-discrimination objectives and public policy purposes, California courts may rely on federal decisions to interpret analogous parts of the state statute. (Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648, 652.)

Example

It is illegal for an employer to fire or refuse to hire someone because of that person’s mental or physical disability. Paula, a woman who has a disability, claims that Dan wrongfully discriminated against her. To establish this claim, Paula must prove: (1) that Dan was a covered employer; (2) that Paula was an employee of Dan; (3) that Dan fired Paula and that Paula’s mental or physical disability was a substantial motivating reason for Dan’s decision to fire her; and (4) that Paula was harmed and that Dan’s conduct was a substantial factor in causing Paula’s

Element 1: Covered Employer

An employer includes any person or entity regularly employing five or more persons. (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 260, quoting Gov. Code, § 12926, subd. (d).)

Covered: Agents of Covered Employers

An agent is a person who represents another person or an entity in dealing with third persons. Under California law, agents of covered employers are also considered employers. (Gov. Code, § 12926, subd. (d).)

To determine whether someone is an agent of an employer, courts look at the amount of control the employer exercises over them. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 492.)

Covered: State, Cities, and Political or Civil Divisions

The state, cities, and any political or civil division of the state are covered employers. (Gov. Code, § 12926, subd. (d).)

Covered: Labor Organizations

A labor organization, like an employer, cannot discriminate on the basis of an individual’s religious creed.(Gov. Code, § 12940, subd. (a).)

A “labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, or terms or conditions of employment. (Gov. Code, § 12926, subd. (g).)

Covered: Individual Employees (Coworkers/Supervisors)

An employee of an entity subject to the FEHA is personally liable for any harassment prohibited that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Gov. Code §, 12940, subd. (j)(3).)

Note: This individual liability was only recently codified by the California Legislature after the California Supreme Court held in Reno v. Baird that individual employees are not liable under FEHA. Today, individual employees can be held liable.

Not covered: Nonprofit Religious Associations and Corporations

Nonprofit religious associations and corporations are not covered employers. (Gov. Code, § 12926, subd. (d)(1).)

Element 2: Protected Employee

Protected: Employees

An employee is someone who is both a person who works under the direction and control of the employer, and a person whom the employer has agreed to hire. (Gov. Code, § 12926, subd. (c).) However, the “FEHA does not define an employer, employee, or what constitutes employment.” (Shephard v. Loyola Marymount Univ. (2002) 102. Cal.App.4th 837, 842.)

Protected: Temporary Workers

Temporary workers are considered employees. (Bradley v. California Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612.)

Protected: Job Applicants

California law expressly extends its anti-discrimination protections to applicants for employment positions. Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 144.)

Protected: Unpaid Interns

Unpaid interns represent one of the few positions in which a worker will have the right to be free from discrimination despite not being an employee. (Gov. Code, § 12940, subds. (c), (j), & (l).)

Not Protected: Volunteers

Volunteers are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625.)

Not Protected: Family Members

Person employed by their parents, spouse, or child are not protected under FEHA. (Mendoza v. Town of Ross (2005) Cal.App.4th 625, 632 [noting that FEHA excludes persons employed by close relatives].)

Not Protected: Independent Contractors

Independent contractors are not protected under FEHA because they do not work under the direct control and supervision of the employer. (Gov. Code, § 12940, subd. (j)(5).)

The FEHA protects employees with mental and physical disabilities. (Gov. Code, §12940, subd. (a).)



Defining Physical Disabilities

Physical disabilities are physiological disorders affecting one or more of the body’s major systems and limiting one or more major life activities. (Gov. Code, § 12926, subd. (k); Cal. Code Regs. tit. 2, § 7293.6, subd. (e).) “Major life activities” include “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” (Cal. Code. Regs., tit. 2, § 7293.6, subds. (e)(2)(a).)


A physical impairment must limit a major life activity to be a “physical disability.” (Maloney v. ANR Freight Sys., Inc. (1993) 16 Cal. App. 4th 1284, 1287-88 [truck driver, who was precluded from particular type of truck driving job with his employer, was not physically disabled in ability to work because he continued to drive other types of trucks for another company during employer-approved medical leave].) California law has adopted the standard that a recognized disability must “limit” a major life activity, as opposed to the “substantially limits” standard under the federal Age Discrimination in Employment Act. Thus, the California definition of a recognized disability is a broader one than its counterpart in federal law. (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019.)

Defining Mental Disabilities

Mental disabilities are psychological disorders, such as retardation, emotional or mental illness, and specific learning disabilities. (Gov. Code, §12926, subd. (i); Cal. Code Regs. tit. 2, § 7293.6, subd. (f).)

Courts presently disagree as to whether a mental impairment must “limit” a major life activity to be a “mental disability.” (Compare Muller v. Automobile Club of Southern California (1998) 61 Cal. App. 4th 431 [mental disabilities must limit a major life activity] with Pensinger v. Bowsmith, Inc. (1998) 60 Cal. App. 4th 709 [mental disabilities do not have to limit a major life activity].)

Examples of Protected Disabilities

Examples of recognized disabilities include:

  • elevated blood pressure (see American Nat’l Ins. Co. v. FEHC (1982) 32 Cal. 3d 603, 608-610);
  • heart conditions (see Angell v. Peterson Tractor, Inc. (1994) 21 Cal. App. 4th 981, 986-987);
  • sensitivity to smoke (see County of Fresno v. FEHC (1991) 226 Cal. App. 3d 1541, 1549);
  • AIDS (see Raytheon Co. v. FEHC (1989) 212 Cal. App. 3d 1242, 1248-50);
  • back injuries (see Pickrel v. General Telephone Co. (1988) 205 Cal. App. 3d 1058, 1061);
  • learning disabilities (see Pensinger v. Bowsmith, Inc. (1998) 60 Cal. App. 4th 709);
  • alcoholism (see Gosvener v. Coastal Corp. (1996) 51 Cal. App. 4th 805, 813).
  • Obesity may qualify as a physical disability where it has a physiological, systematic basis. (Cassista v. Community Foods, Inc. (1993) 5 Cal. 4th 1050, 1056-65 [employer not liable where employee failed to prove weight problem resulted from physiological disorder which affected one or more of her body systems].)

The FEHA also protects employees who are not in fact physically disabled, but are treated or “regarded as” having or having had a physical disability. (Gov. Code, § 12926, subd. (k); Cassista v. Community Foods, Inc. (1993) 5 Cal. 4th 1050, 1065-66.)


An employee offered sufficient evidence to overcome summary judgment by showing that he was “regarded as having a physical disability” where his employer knew he was diagnosed as having anxiety and depression; his employer asked whether he was having any “problems” during meetings to discuss his aberrational behavior, and his employer “strongly encouraged” the employee to seek counseling. (Holihan v. Lucky Stores (9th Cir. 1996) 87 F.3d 362, 366.)

Examples of Unprotected Disabilities

The FEHA may not cover “temporary” disabilities.

  • (Sanders v. Arneson Prods. (9th Cir. 1996) 91 F.3d 1351 [temporary psychological impairment which lasted less than four months was not a disability within the meaning of the ADA];
  • Wilmarth v. City of Santa Rosa (N.D. Cal. 1996) 945 F. Supp. 1271 [carpal tunnel syndrome which resolved completely after two years was not ADA disability].)
  • Unlawful drug use, transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania, homosexuality and bisexuality are not protected disabilities. (Cal. Code Regs. tit. 2, §§ 7293.6, subds. (b)-(d).)

Element 3: Adverse Employment Action

“Adverse employment action” is a shorthand expression for the kind, nature, or degree of action against an employee that is enough to state a claim. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 373.) Generally, the discrimination must adversely and materially affect the terms, conditions, or privileges of plaintiff’s employment. (Gov. Code, § 12940, subd. (a).)

An adverse employment action is interpreted liberally by the court under a case-by-case analysis, and it must be substantial. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1053-1043.) Additionally. an adverse employment action may consist of a “series of subtle, yet damaging, injuries,” rather than a single actionable event. (Ibid.)

Failing to Make “Reasonable Accommodation” 
It is unlawful for an employer to refuse to hire or employ or to discharge an applicant or employee because of the individual’s disability. (Gov. Code, § 12940, subd. (a).) The FEHA also makes it unlawful for employers to fail to make a “reasonable accommodation” for the known physical or mental disability of an applicant or employee. (Gov. Code, § 12940, subd. (k).)

Examples of Reasonable Accommodation
Examples of “reasonable accommodation” include job restructuring, reassignment to a vacant position, and part-time or modified work schedules. (Gov. Code, §12926, subd. (m); Cal. Code Regs. tit. 2, §7293.9, subd. (a).) Any reasonable accommodation is sufficient. The employer need not adopt the most reasonable accommodation or accept the employee’s requested accommodation. (Cf. Soldinger v. Northwest Airlines (1996) 51 Cal. App. 4th 345, 370 [religious accommodation].)

An employer reasonably accommodated an alcoholic employee where the employer’s efforts included paying for the employee’s medical treatment and temporarily reassigning him to a less stressful position, even though the employee lied about the reasons for his absences from work and repeatedly violated a written “second-chance” agreement which required the employee to remain drug and alcohol-free. (Gosvener v. Coastal Corp. (1996) 51 Cal. App. 4th 805, 811-813.)

Example of Triable Issue Material Fact Raised Where Employer Failed to Reasonably Accommodate Employee with AIDS
An employee raised a triable issue of material fact as to his claim that his employer failed to reasonably accommodate the employee’s physical disability (AIDS) by failing to explore reassignment as a potential accommodation where the employee was healthy enough to perform some alternate job positions. (Prilliman v. United Airlines, Inc. (1997) 53 Cal. App. 4th 935, 953-56.)

Example of Triable Issue Material Fact Raised Where Employer Failed to Reasonably Accommodate Employee’s Back/Neck Problems

An employee raised a triable issue of material fact as to her claim that her employer failed to reasonably accommodate her physical disability (back and neck problems) with evidence that the employer terminated her without exploring other options with her in a meaningful way. (Sargent v. Litton Sys. ( N.D. Cal. 1994) 841 F. Supp. 956, 960-62.)

Example of Substantial Evidence Where Employer Failed to Reasonably Accommodate Employees with Respiratory Ailments 
Substantial evidence supported the finding that an employer failed to reasonably accommodate employees with respiratory ailments caused by their hypersensitivity to tobacco smoke. The FEHC did not abuse its discretion in finding that the employer’s efforts to accommodate the employees’ disabilities—by, among other things, asking smokers to be considerate of nonsmokers and placing smokers and nonsmokers at separate ends of the room—did not amount to reasonable accommodation. (County of Fresno v. FEHC (1991) 226 Cal. App. 3d 1541, 1550-56.)

Element 4: Discriminatory Intent

To prevail under a disparate treatment theory of disability discrimination, a plaintiff must prove that he or she suffered an adverse action because of a protected characteristic. (Mixon v. Fair Employment & Housing Comm’n (1987) 192 Cal.App.3d 1306, 1317.) Because disparate treatment is based on intentional discrimination, a plaintiff must prove the defendant employer harbored discriminatory intent. (Scotch v. Art Inst. of Calif.-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1007) (plaintiff “must prove by a preponderance of the evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision.”)).

The employee must prove that the adverse action was specifically motivated, at least in part, by the employee’s disability. (Brundage v. County of Los Angeles Office of Assessor (1997) 57 Cal. App. 4th 228.)

The employee must prove that the employer considered his or her disability in denying an employment benefit. (Cal. Code Regs. tit. 2, §7293.7.)

The employer is liable if the disability was in any way a “motivating factor” in the employment decision. (Cf. Caldwell v. Paramount Unified School Dist. (1995) 41 Cal. App. 4th 189, 206-08 [age discrimination].)

Proving Intentional Discrimination by Circumstantial or Direct Evidence

A plaintiff may prove intentional discrimination by using either direct or circumstantial evidence. (Mixon v. Fair Employment & Housing Comm’n (1987) 192 Cal.App.3d 1306, 1317.)

Direct Evidence of Discriminatory Intent

When there is direct evidence of discriminatory intent, a plaintiff may establish discrimination by a preponderance of the evidence. (Harris v. Hughes Aircraft (1993) 19 Cal.App.4th 1552A.) 


Plaintiff Has Burden of Proving Intentional Discrimination

In disparate treatment cases, the employee must prove the ultimate fact that the defendant engaged in intentional discrimination. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327.)

Three-Part Analysis for Cases Based on Circumstantial Evidence (McDonnell Douglas Test)

In most cases, a plaintiff will not have direct evidence of the employer’s discriminatory intent. Consequently, a three-part analysis for cases based on indirect or circumstantial evidence has been established:

  1. The complainant must establish a prima facie case of discrimination;
  2. The employer must offer a legitimate reason for its actions; and
  3. The complainant must prove that this reason was a pretext to mask an illegal motive. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52.)

Establishing a Prima Facie Case of Discrimination

To establish a prima facie case of discrimination a plaintiff must show that: (1) he belongs to a protected class; (2) his job performance was satisfactory; (3) he was discharged (or suffered some other adverse employment action); and (4) others not in the protected class were retained in similar jobs and/or the job was filled by an individual of comparable qualifications not in the protected class. (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317.)

Very Little Evidence Required to Show a Prima Facie Case of Discrimination

The amount of evidence that must be produced to create a prima facie case of discrimination is “very little.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189.)

Establishing Prima Facie Case in a Wrongful Discharge Case

In a wrongful discharge case, a plaintiff usually establishes a prima facie case in one of two ways: either he was replaced by a non-minority member no more qualified than he, or he was fired when minority co-workers similarly situated were not fired. (Mixon v. Fair Employment and Housing Comm’n (1987) 192 Cal.App.3d 1306.)

After a Prima Facie Case is Established, Burden Shifts to Defendant

Once a prima facie case is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory business reason for the adverse action. (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32.)

Discharging Employee for Economic Reasons Is Not Discriminatory

Discharging an employee for economic reasons (i.e., as part of a reduction-in-force) may be sufficient justification as a matter of law. (Clutterham v. Coachmen Indus., Inc. (1985) 169 Cal.App.3d 1223.)

Believing Employee Engaged in Misconduct Is A Legitimate Business Reason

Terminating an employee based on a good faith belief that an employee engaged in misconduct is a legitimate business reason. (Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32.)

Plaintiff Can Still Rebut to Show Discrimination

If the employer meets its burden of production, the plaintiff may still prevail by showing by a preponderance of evidence that the discriminatory reason more likely than not motivated the employer or that the employer’s proffered reason is a pretext for discrimination and is unworthy of credence. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297.)

Examples of Failure to Prove Discriminatory Intent 
An employee failed to prove that her employer knew of her mental disability when it decided to terminate her, and thus did not have a viable discrimination claim. The employee’s claim for discrimination based on the employer’s failure to reinstate her also failed as a matter of law because the employer denied reinstatement based on its good faith determination that the employee did not justify her six-week absence from work, not because of her disability. (Brundage v. County of Los Angeles Office of the Assessor (1997) 57 Cal. App. 4th 228 [employee’s claim for failure to provide reasonable accommodation also failed as a matter of law because she merely wanted her job back and did not request or need accommodation].)

An employee failed to prove that his employer knew of his learning disorder when he was terminated, and, thus, did not have a viable disparate treatment claim. The employee was not diagnosed with a learning disorder until 18 months after he was terminated. Further, although the employer was aware that the employee had difficulty reading and writing, his complaints were not such an obvious manifestation of an underlying learning disability that it would be reasonable to infer the employer knew of the employee’s disability. (Pensinger v. Bowsmith, Inc. (1998) 60 Cal. App. 4th 709.)

An employee failed to establish that her employer’s disability-neutral reason for termination (breach of medical leave policy) was a pretext for disability discrimination where the employee testified that she did not feel she was terminated because of her disability. (Walker v. Blue Cross (1992) 4 Cal. App. 4th 985, 997-98.)

Must Also Prove Damages

The employee must prove that he or she suffered damages as a proximate result of the adverse treatment. (Prilliman v. United Airlines, Inc. (1997) 53 Cal. App. 4th 935, 952.) The employee must prove a causal connection between the adverse action and his or her damages, e.g., failure to accommodate resulted in lost wages. (See id.)

FILING A DISABILITY DISCRIMINATION CLAIM

Must Exhaust Administrative Remedies

Before filing a statutory disability discrimination claim, the employee must exhaust available administrative remedies by filing a charge of disability discrimination with the California Department of Fair Employment & Housing (“DFEH”). (Gov. Code, § 12960.)

Right to Sue After One Year of Filing With DFEH

An employee’s right to sue arises by operation of law when the Department of Fair Employment and Housing fails to resolve the matter within one year from the time the employee first filed an administrative complaint for discrimination. The employee’s failure to obtain a second right to sue letter does not preclude a finding that the employee exhausted all required administrative remedies. (Grant v. Comp USA, Inc. (2003) 109 Cal.App.4th 637.)

Exception to Exhaust Adminstrative Remedies

Employees may not be required to exhaust available administrative remedies before filing common law discrimination claims. (See Stevenson v. Superior Court (1997) 16 Cal. 4th 880 [employee does not have to exhaust administrative remedies to maintain common law claim for age discrimination].) However, employers who are not covered by the FEHA might not be liable under a common law theory. (Cf. Jennings v. Marralle (1994) 8 Cal. 4th 121, 129-36 [employee could not maintain common law claim for age discrimination against employer who was not covered by the FEHA].)

Statute of Limitations

The employee must file a civil lawsuit within one year from the date that the DFEH issues a “right-to-sue” notice to the employee. (Gov. Code, §12965, subd. (b).)

Exception to Statute of Limitations

Employees may assert discrimination claims based on adverse actions outside of the one-year limitations period under the “continuing violation” doctrine. To invoke the doctrine, the employee must show that the adverse action is part of a long-standing practice of discrimination or harassment which continued into the limitations period. (Cf. Accardi v. City of Simi Valley (1993) 17 Cal. App. 4th 321, 349-51 [sexual harassment].)

REMEDIES

Compensatory Damages

The plaintiff may recover damages if he or she demonstrates that the Defendant engaged in discriminatory practice or discriminatory practices with malice or with reckless indifference. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519.)

Punitive Damages

Where an action is pleaded under the Fair Employment and Housing Act for discrimination, the same opportunity to plead and recover punitive damages exists. (Monge v. Superior Court (1986) 176 Cal.App.3d 503.)

Injunctive Relief

Injunctive relief is an appropriate remedy where a business engages in unlawful discrimination since an employer that so discriminates may have an unfair advantage over one that complies with the FEHA.  Injunctive relief can include reinstatement of the wrongfully terminated employee. (Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779.)

Prejudgment Interest

Prejudgment interest accompanies a backpay award in order to make the employee whole. (Currie v. Workers’ Comp. Appeals Bd. (2001) 24 Cal.4th 1109.)

Attorneys’ Fees and Costs

The court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees. (Gov. Code, § 12965, subd. (b).)

Lost Compensation

Back Pay

Back pay restores a plaintiff in an employment discrimination case to the position he or she would have occupied but for the discrimination. (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139.)

Front Pay

Front pay as the term is used in employment litigation, is a measure of damages for loss of future income, as opposed to backpay, which is lost-wages damages through the time of trial. If the judge orders reinstatement of a fired employee, front pay might be awarded to make up a wage differential if there were no vacancy into which the employee could immediately be reinstated or promoted. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359.)

AFFIRMATIVE DEFENSES

Bona fide Occupational Qualification

An employer may assert the bona fide occupational qualification (BFOQ) defense to a disparate treatment claim where the employer has a practice that on its face excludes an entire group of individuals because of their protected status. (Gov. Code, § 12940, subd. (a)(1).) This defense is a narrow exception to the general prohibition on discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1984) 187 Cal.App.3d 1, 19.)

Example

Dan claims that his decision to fire Paula was lawful because he was entitled to consider her disability as a job requirement. To succeed in his defense, Dan would need to prove: (1) that the job requirement was reasonably necessary for the operation of Dan’s business; (2) that Dan had a reasonable basis for believing that substantially all members of Paula’s disability group are unable to safely and efficiently perform that job; (3) that it was impossible or highly impractical to consider whether each employee was able to safely and efficiently perform the job; and (4) that it was impossible or highly impractical for Dan to rearrange job responsibilities to avoid using disbility as a job requirement.

After-Acquired Evidence

This equitable defense applies where an employer learns, after a termination, that the employee committed additional termination-worthy wrongdoing, such as résumé fraud or on-the-job misconduct. (Salas v. Sierra Chem. Co. (2014) 59 Cal.4th 407, 428.)

Health or Safety of Disabled Employee and/or Others

(Gov. Code, § 12940; Cal. Code Regs. tit. 2, §§ 7293.8, subds. (c)-(e); Sterling v. Transit Co. v. F.E.P.C. (1981) 121 Cal. App. 3d 791, 798-99 [rejecting defense where employer’s safety concerns were speculative].)

Inability to Perform

(Gov. Code, §12940; Cal. Code Regs. tit. 2, §7293.8, subd. (b) [employer may use this defense, if “after reasonable accommodation has been made, the applicant or employee cannot perform the essential functions of the position in question because of his or her disability”]; see also Gov. Code, §12926, subd. (f) [defining essential functions]; Cal. Code Regs. tit. 2, §7293.8, subd. (g) [same]; Prilliman v. United Airlines, Inc. (1997) 53 Cal. App. 4th 935, 957-64.)

Undue Hardship

(Gov. Code, §§12940,12926, subd. (p) [employer must prove that the necessary accommodation would require “significant difficulty or expense”]; Cal. Code. Regs. tit. 2, §7293.9, subd. (b).)

Judicial Estoppel Defense

Employee may not take inconsistent positions in judicial proceedings; employee could not prosecute ADA claim for failure to make reasonable accommodation where employee represented that she was totally disabled on her state disability benefit and Social Security Administration forms. (Kennedy v. Applause, Inc. (9th Cir. 1996) 90 F.3d 1477, 1480-82)


Statement in employee’s disability-benefit application that his disability was “permanent” did not preclude his FEHA claim for failure to make reasonable accommodation because statement was not inconsistent with employee’s claim that he could have performed alternate job positions. Prilliman v. United Airlines, Inc. (1997) 53 Cal. App. 4th 935, 957-64.