In Liu v. City and County of San Francisco (— Cal.Rptr.3d —-, Cal.App. 1 Dist., December 11, 2012), a California court of appeal considered whether a city police department violated the California Fair Employment and Housing Act (“FEHA”) by declining to reinstate a police officer who had suffered a disability when the job required duties he was no longer physically able to perform. The court ruled that FEHA does not prohibit an employer from declining to hire a disabled person for a position when the person’s disability makes them unable to perform the essential duties of the position.
Kenneth Lui (“Lui”) was employed as a police officer by the San Francisco Police Department (“Department”). In 2005, he suffered a heart attack and was diagnosed with diabetes, high blood pressure, high cholesterol, and coronary artery disease. On November 1, 2006, he returned to work in a 365-day temporary modified duty (“TMD”) performing light duty work in the records room.
Pursuant to Department General Order (“DGO”) 11.12, negotiated between the Department and the San Francisco Police Officers Association, permanent light duty assignments were eliminated and TMD assignments were limited to one year. Further, according to the DGO, an officer on TMD seeking to return to a full duty position, must be able to perform functions listed on an Essential Job Functions (“EJF”) list, which included physically strenuous duties, such as making forcible arrests, pursuing fleeing suspects, and responding to emergencies.
As Lui’s one year on TMD neared its conclusion, Lui sought to return to permanent full duty in a capacity that did not involve physically strenuous work, which his physician had informed the Department would pose a major danger to his health. The Department advised Lui that there were no vacant sworn officer positions available in the Department consistent with his medical restrictions, but offered him a search to identify various non-sworn positions in the Department. Lui replied that he was not interested in a non-sworn position because it would adversely affect his pension. After his one-year TMD assignment ended, Liu retired.
After retiring, Liu filed a lawsuit against the Department under FEHA alleging discrimination, failure to accommodate, failure to prevent discrimination, retaliation, and failure to engage in the good faith accommodation process. The trial court ruled in favor of the Department on every claim. Liu appealed.
The court reviewed the language of the relevant provisions of FEHA that it make it unlawful “for an employer, because of the … physical disability or mental disability … of any person … to bar or to discharge the person from employment … or to discriminate against the person in compensation in terms, conditions, or privileges of employment.” However, FEHA limits the reach of that proscription by “excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties.” The court cited case law that in order to prevail on a discrimination claim under FEHA, “an employee bears the burden of showing (1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without accommodation.”
Here, the court found that the Department did not consider Liu for full duty vacancies because his physician verified that he could not safely perform various duties on the EJF list. Requiring that full duty officers be able to perform those duties does not result in unlawful discrimination when those who cannot perform them are not hired because FEHA specifically does not protect those persons who are not qualified to perform essential job duties.
The evidence showed that the duties on the EJF list that Liu could not perform were, in fact, essential job duties for all sworn officers even for primarily administrative personnel. The Department demonstrated that during emergencies, or mass demonstrations or celebrations, it requires the full deployment of all of its personnel. “The evidence shows that the duties in the EJF list are essential functions of the administrative positions at issue in the present case because there are a limited number of officers available to the Department to perform those functions,” the court said.
Because Liu could not perform the essential functions of a sworn police officer, the Department had not discriminated against him by declining to hire him as one. FEHA does not mandate that an employer hire a disabled employee for a position whose duties he is unable to adequately perform. Further, FEHA does not obligate the Department to accommodate Liu by excusing him from the performance of essential functions.
The trial court was correct to dismiss Liu’s FEHA claims and the judgment was affirmed.
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