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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

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