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The California Supreme Court took a big burden off employers Thursday and placed it squarely on the backs of employees. Voting 4-3, the justices held that disabled workers suing their bosses for discrimination can prevail only by proving they could still perform their jobs. The losing party had argued that employers should carry the burden of proof. “By its terms, [state law] makes it clear that drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself,” Justice Ming Chin wrote for the majority. “Rather,” he added, “drawing these distinctions is prohibited only if the adverse employment action occurs because of a disability and the disability would not prevent the employee from performing the essential duties of the job. Therefore, in order to establish that a defendant employer has discriminated � the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.” Chin was joined by Chief Justice Ronald George and Justices Marvin Baxter and Carol Corrigan. California law now resembles the Americans with Disabilities Act, a federal statute which also requires disabled individuals to show they’re capable of doing their jobs if they hope to win a discrimination case. Justice Kathryn Mickle Werdegar authored a sharp dissent, arguing that the state Legislature � by prohibiting disability discrimination since as far back as 1973 � had sought to overcome the assumption that people with physical and mental afflictions couldn’t hold down jobs. “Now, by reading into [the Fair Employment and Housing Act] a requirement that persons with disabilities must prove their ability to perform before they can complain of discrimination,” she wrote, “the majority effectively endorses this legally discredited assumption.” Justices Joyce Kennard and Carlos Moreno concurred in the dissent.
‘In order to establish that a defendant employer has discriminated … the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.’

Justice Ming Chin California Supreme Court

The suit was filed by Dwight Green, who was informed by his bosses in October 2000 that he couldn’t be cleared to return to full duty as a stationary engineer for a state prison in Chino. Green � who had held the job for 26 years � contracted hepatitis C through his work in 1990, and then injured his back nine years later while lifting a garbage disposal. Green was placed on light duty for most of those years. In July 2000 he was cleared for full duty, but the prison system later rescinded that clearance. Then, after he initially took disability retirement, his employers refused to let him return to work, and Green sued, claiming his bosses’ action violated the FEHA. San Bernardino County Superior Court jurors awarded Green nearly $2.6 million, but that was reduced by the trial judge. Riverside’s Fourth District Court of Appeal reinstated the award in November 2005, and held that the burden is on the employer to prove a disabled employee can’t do the job. That decision conflicted with Los Angeles’ Second District, which had ruled just the opposite in 1997′s Brundage v. Hahn, 57 Cal.App.4th 228. The Supreme Court sided with the Second District, saying the statute in question was “clear and unambiguous.” “Had the Legislature actually intended to relieve a plaintiff employee of the burden of proving an actionable discrimination on the basis of disability,” Chin wrote, “we believe it could and would have done so in a more conspicuous manner.” The decision remands the case for a new trial “with proper instructions, unless the evidence shows as a matter of law that [Green] cannot meet his burden.” Norman Pine, an appellate specialist with Sherman Oaks’ Pine & Pine who represented Green, said he was “sorely disappointed” by the ruling � “most of all for our client, but also for all the other disabled California citizens. “What this does,” he added, “is make it harder for them to prove their cases.” Claudia Center, a San Francisco lawyer who helped argue the case as amicus curiae for Green, said the ruling won’t do much to change day-to-day activities, because attorneys in her shoes are always trying to find evidence that an individual is qualified for his or her job. “And we’re going to keep doing that,” said Center, senior staff attorney for The Legal Aid Society-Employment Law Center. Los Angeles-based Deputy Attorney General Michelle Logan-Stern, who argued for the state, didn’t return a telephone call seeking comment. The ruling is Green v. State of California, 07 C.D.O.S. 9951.

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