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Two cases that are currently pending before the California Supreme Court offer an opportunity to provide a more reasonable interpretation of California’s FEHA disability discrimination law. In Green v. State of California, the Supreme Court should reverse the appellate court decision holding that the burden is on the employer to prove, as an affirmative defense to a disability discrimination claim, that the employee was incapable of performing essential duties of his or her position with reasonable accommodation. Imposing that burden on employers departs from the well-established standard under the federal Americans with Disabilities Act, which makes this part of a plaintiff’s prima facie case, and is generally inconsistent with the interpretation of other employment discrimination laws. Placing this initial burden on the plaintiff will help to weed out non-meritorious cases in the trial court. The second case, Williams v. Genentech, should be affirmed. In this case, the Court of Appeal affirmed a summary judgment on the plaintiff’s claims of disability discrimination, failure to accommodate and failure to engage in the interactive process. The appellate court correctly found that an employer, rather than the employee, had the ultimate discretion to choose between effective accommodations, that the employer’s obligation was to assign an employee to a position upon a return to work only if an existing vacant position was available for which she qualified and noted that reasonable accommodation does not require an employer to hold a position open indefinitely. By affirming these principles the California Supreme Court will ensure greater reasonableness in the interpretation of FEHA disability discrimination claims and provide much needed guidance for employers.

— Raymond Lynch Hanson, Bridgett, Marcus, Vlahos & Rudy

If I could pass any law this year, I would amend the federal and state constitutions to provide for the right to jury trial in civil cases. Maybe then courts would put an end to mandatory arbitration of employment claims and stop pretending that arbitration is fair for both employers and employees. Wait, there already is a right to jury trial in the federal and state constitutions. Somehow the courts seem to have over-looked this right, though the language seems straightforward enough. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,” reads a portion of the Seventh Amendment to the U.S. Constitution. “Trial by jury is an inviolate right and shall be secured to all,” declares Article I, Section 16 of the California Constitution. Mandatory arbitration poses the single greatest threat to the civil justice system to-day. For years courts have tiptoed around the inherent unfairness and biases of mandatory arbitration, citing alleged benefits such as cost savings and quick resolution. Many of us know from experience that arbitrations often are neither cheap nor quick. We also know that arbitrations favor defendants. That’s why employers increasingly have inserted mandatory arbitration clauses in employment applications and employee handbooks. That’s why employees continue to fight for their constitutional right to a jury trial. Yet the courts regard this inherent bias of arbitration as a dirty little secret that cannot be acknowledged. If arbitration were fair to both sides, why do employers have to force it on employees rather than giving employees a choice? Wouldn’t most employees readily embrace a dispute resolution system that is fair, inexpensive and quick? Let’s hope our courts restore the sub-stance of the constitutional right to jury trial and cease enforcing mandatory arbitration clauses forced on vulnerable employees who must choose between working or waiving their constitutional rights.

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