DWIGHT D. GREEN, Plaintiff and Appellant, v. STATE OF CALIFORNIA, Defendant and Appellant, 42 Cal. 4th 254

Opinion CHIN, J. The Americans with Disabilities Act of 1990 (ADA; 42 U.S.C. § 12101 et seq.) requires that plaintiffs prove they are “qualified individuals” under the statute, i.e., that they have the ability to perform a job’s essential duties before they can prevail in a lawsuit for discrimination. (42 U.S.C. § 12112(a).) Although the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)) does not expressly include the term “qualified individual,” the question here is whether it includes a similar requirement. In 1997, a Court of Appeal held that it does. (Brundage v.

Hahn (1997) 57 Cal.App.4th 228, 235 [66 Cal.Rptr.2d 830] (Brundage).) The Court of Appeal here held that it does not.

The FEHA prohibits discrimination against any person with a disability but, like the ADA, provides that the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation. (§ 12940, subd. (a)(1); 42 U.S.C. § 12112(a).) After reviewing the statute’s language, legislative intent, and well-settled law, we conclude the FEHA requires employees to prove that they are qualified individuals under the statute just as the federal ADA requires. We therefore reverse the Court of Appeal’s judgment. I.

FACTS AND PROCEDURAL HISTORY The facts and procedural discussion are taken largely from the Court of Appeal opinion, supplemented by the record. Plaintiff began working for the State of California in 1974. In 1987, plaintiff worked as a stationary engineer for the Department of Corrections at the California Institute for Men in Chino (the Institute). Plaintiff’s duties included maintenance and repair of equipment and mechanical systems and supervision and instruction of a crew of inmates. In 1990, plaintiff was diagnosed with hepatitis C.

Plaintiff presumably contracted the disease while working on the sewer pipes at the Institute. From 1990 until 1997, plaintiff did not have any work restrictions because of the illness, nor did he lose any time from work. In addition, plaintiff was considered a good employee and received letters of commendation. George Woods, who supervised plaintiff from 1994 through 1997, stated in several letters of commendation that plaintiff was one of his best stationary engineers. In 1997, plaintiff’s physician, Dr. James Wang, began treating plaintiff with the drug interferon or Infergen (a brand of interferon).

Plaintiff received Infergen injections as a treatment for hepatitis C. A single course of treatment required injections three times a week for a one-year period. The treatment caused plaintiff to feel fatigued, have trouble sleeping, and to suffer headaches and body aches. On February 14, 1997, supervisor Woods received a letter from Dr. Wang, requesting that plaintiff be put on light duty until at least May or June of 1997. Woods accommodated plaintiff and allowed him to arrive to work late on the days he received the Infergen injections.

At times, Woods assigned plaintiff to positions that did not require heavy labor. In all other respects, plaintiff continued to perform his duties. On January 11, 1999, plaintiff was reprimanded for coming into work late on various days. Plaintiff explained to his employer that his ongoing medical condition prevented him from being punctual at times. In June 1999, plaintiff injured his back while lifting a garbage disposal. The injury was unrelated to any side effects from the interferon treatment. Plaintiff continued working but, on the recommendation of the doctor treating his back, was placed on light duty.

Defendant had a policy that employees could be on light duty for a limited time only. Because plaintiff’s back problems continued to restrict him to light duty work, in November 1999, defendant placed plaintiff on disability leave. On July 3, 2000, plaintiff returned to work cleared for full duty, taking sick leave to attend physical therapy sessions for his back injury only. At that time, the Institute’s retum-to-work coordinator, Kristi Hilliker, reviewed plaintiffs file. Hilliker noticed the 1997 doctor’s report the workers’ compensation’s qualified medical examiner (Dr.

Alvin Markovitz) prepared at the time plaintiff began receiving his interferon injections. The report recommended plaintiff for light duty only. Based on this report, Hilliker concluded that plaintiff should not have been cleared for full duty work, and decided to meet with plaintiff that same day. Before the meeting could take place, however, plaintiff went to the coordinator’s office complaining of fatigue due to his hepatitis, and requested to see a doctor. He met with the Institute’s associate warden of business services, Sheila Tatum, and Hilliker.

Plaintiff told them that he was feeling tired and wanted to see his doctor. Tatum and Hilliker told plaintiff that based on work restrictions contained in the 1997 medical report, plaintiff was incapable of performing his duties and could not return to work. They discussed various options with plaintiff, who initially decided to take disability retirement. After the meeting, plaintiff and Hilliker communicated about plaintiff’s options.

Plaintiff received a letter from Hilliker dated October 2, 2000, informing him that unless he could be cleared for full duty, he could not return to his position as a stationary engineer. In November of the same year, plaintiff sought permission to return to work. Hilliker denied his request based on 1999 findings of a workers’ compensation proceeding that found plaintiff had suffered a work-related injury. Plaintiff subsequently filed a disability discrimination claim with the Department of Fair Employment and Housing.

He then filed a complaint for damages in the superior court alleging that defendant discriminated against him because of his disability. Dr. Markovitz’s 1997 report was not admitted into evidence, and Dr. Markovitz was not allowed to testify. The jury returned a general verdict for plaintiff, awarding him $597,088 in economic damages, and $2 million in noneconomic damages. Defendant moved for a new trial, challenging the trial court’s decision to exclude Dr. Markovitz’s testimony.

The trial court rejected defendant’s contention, but ruled that the motion for a new trial would be granted unless plaintiff accepted a remittitur, which plaintiff did. On appeal, defendant raised several claims, including: The jury’s verdict was not supported by the evidence; a decision of the workers’ compensation judge barred plaintiff’s disability discrimination claim; the court abused its discretion in excluding evidence of the subsequent Workers’ Compensation Appeals Board proceeding and the testimony of Dr.

Alvin Markovitz, the qualified medical examiner for the administrative proceeding; the trial court erred in failing to instruct the jury on the elements of a FEHA claim and the defenses; and the award of $2 million in noneconomic damages was excessive. Plaintiff cross-appealed, claiming that the trial court exceeded its authority in reducing the noneconomic damages and abused its discretion in denying the requested amount of attorneys fees. The Court of Appeal affirmed the judgment in plaintiff’s favor.

Recognizing that trial court never instructed the jury on the element of qualification or inability to perform, the Court of Appeal held that the FEHA “does not require plaintiff to prove that he is a qualified individual. Rather, the burden is on defendant to establish that plaintiff is incapable of performing his essential duties with reasonable accommodation.” We granted defendant’s petition for review. As we explain, we disagree with the statement of defendant’s burden of proof adopted by the Court of Appeal and advocated by plaintiff here.

Instead, we conclude that the Legislature has placed the burden on a plaintiff to show that he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation). As explained further below, legislative intent, case law, and legislative history support defendant’s position—a view that also finds support in Evidence Code

section 500, which requires a plaintiff to prove each fact essential to the claim for relief he or she is asserting. II. DISCUSSION A. Statutory Analysis Why have the California cases, beginning with Brundage, supra, 57 Cal.App.4th at page 235, nearly unanimously presumed plaintiffs must prove, like their federal counterparts under the ADA, that they are qualified individuals under the FEHA in order to prevail in their lawsuits? The answer lies in the statute’s plain meaning, which is clear and unambiguous.

Under settled canons of statutory construction, in construing a statute we ascertain the Legislature’s intent in order to effectuate the law’s purpose. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) We must look to the statute’s words and give them their usual and ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [7 Cal.Rptr.2d 238, 828 P.2d 140].) The statute’s plain meaning controls the court’s

interpretation unless its words are ambiguous. If the plain language of a statute is unambiguous, no court need, or should, go beyond that pure expression of legislative intent. (Ibid.) We therefore begin our statutory analysis with a comparison of the ADA and the FEHA provisions at issue. We then discuss plaintiff’s statutory

interpretation and why we disagree with it under the premise that a statute’s meaning is guided by the plain words the Legislature chose. (Kobzoff v.

Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 861 [80 Cal.Rptr.2d 803, 968 P.2d 514].) The ADA provides: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” (42 U.S.C. § 12112(a).) In turn, the ADA defines the term “qualified individual with a disability” to mean “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (42 U.S.C. § 12111(8).) Federal case law interpreting the ADA is clear that an employee bears the burden of proving, among other elements, that he or she meets the definition of a “qualified individual with a disability” in order to establish a violation of the ADA.

Speaking in terms of the elements for which a plaintiff bears the burden of proof at trial, the high court has explained that “[a]n ADA plaintiff bears the burden of proving that she is a ‘qualified individual with a disability’—that is, a person ‘who, with or without reasonable accommodation, can perform the essential functions’ of her job.” (Cleveland v. Policy Management Systems Corp. (1999) 526 U.S. 795, 806 [143 L.Ed.2d 966, 119 S.Ct. 1597]; see also Jones v. Potter (6th Cir. 2007) 488 F.3d 397, 403; Browning v. Liberty Mut. Ins. Co. (8th Cir. 1999) 178 F.3d 1043, 1047; Waggoner v.

Olin Corp. (7th Cir. 1999) 169 F.3d 481, 484; Laurin v. Providence Hosp. (1st Cir. 1998) 150 F.3d 52, 56, 58-59; Monette v. Electronic Data Systems Corp. (6th Cir. 1996) 90 F.3d 1173, 1178, 1184, 1186 & fn. 12; Katz v. City Metal Co., Inc. (1st Cir. 1996) 87 F.3d 26, 30, 33; Chandler v. City of Dallas (5th Cir. 1993) 2 F.3d 1385, 1389-1390, 1393-1394 [Rehabilitation Act of 1973]; see also E.E.O.C. v. Wal-Mart Stores, Inc. (8th Cir 2007) 477 F.3d 561, 568.) This qualification element of the plaintiff’s burden of proof was also found in the predecessor to the ADA, the Rehabilitation Act of 1973.

Many decisions analyzing the earlier enactment are relied upon in interpreting the ADA. (See, e.g., Monette v. Electronic Data Systems Corp., supra, 90 F.3d at pp. 1177-1178; Chandler v. City of Dallas, supra, 2 F.3d at pp. 1389-1390, 1393-1394; see also Rizzo v. Children’s World Learning Centers, Inc. (5th Cir. 1996) 84 F.3d 758, 763, affd. en banc (2000) 213 F.3d 209; White v. York Intern. Corp. (10th Cir. 1995) 45 F.3d 357, 360-361 & fn. 5; Doe v.

New York University (2d Cir. 1981) 666 F.2d 761, 776-777.) The reason is clear; it is not unlawful under federal law to draw a distinction on the basis of a disability if that disability renders an employee unqualified, with or without reasonable accommodation, to perform the essential functions of a position. California has prohibited employment discrimination based on physical handicap since 1973. (Colmenares v.

Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1024-1025 [130 Cal.Rptr.2d 662, 63 P.3d 220].) “In 1980, that prohibition and the definition of physical handicap to include ‘impairment of sight, hearing, or speech, or impairment of physical ability’ were incorporated into the newly enacted FEHA.” (Id. at pp. 1024—1025, quoting Stats. 1980, ch. 992, § 4, pp. 3140, 3144.) Like the ADA, and like its predecessor the Rehabilitation Act of 1973, today the FEHA,

section 12940, subdivision (a), prohibits discrimination based on an employee’s physical disability. Under the FEHA, it is unlawful “[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition ... of any person, ... to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Ibid.) Although

section 12940 proscribes discrimination on the basis of an employee’s disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties: “This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (§ 12940, subd. (a)(1).) By its terms,

section 12940 makes it clear that drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, 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, at least not with reasonable accommodation.

Therefore, in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.

In this sense, the FEHA is strikingly similar to the ADA, which as indicated prohibits employer discrimination against any “qualified individual with a disability,” i.e., discrimination against “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position.” (42 U.S.C. § 12111(8); see 42 U.S.C. § 12112(a).) This similarity between the state and federal enactments is not a coincidence, but reflects the Legislature’s deliberate effort in 1992 to conform the FEHA to this ADA provision.

As the legislative history discloses, the Legislature amended the FEHA in 1992 by clarifying that an employee must be able to perform the “essential duties with reasonable accommodations.” (Stats. 1992, ch. 913, § 1, p. 4282.) In passing the amendment, at least one legislative analysis observed the Legislature’s “conformity [to the ADA rules] will benefit employers and businesses because they will have one set of standards with which they must comply in order to be certain that they do not violate the rights of individuals with physical or mental disabilities.” (Assem. Com. on Judiciary, Analysis of Assem.

Bill No. 1077 (1991-1992 Reg. Sess.) as amended Jan. 6, 1992, p. 4.) It is clear, then, that the Legislature incorporated the ADA requirement with full knowledge of the purpose the language serves in the ADA—as a means of distinguishing permissible employment practices from impermissible disability discrimination based on the employee’s ability to perform in the particular employment position with reasonable accommodation. Thus, even if there were some conceivable ambiguity regarding the burden issue prior to that point in time, no such ambiguity existed afterward.

Requiring a plaintiff employee who seeks relief under the FEHA to shoulder the burden of producing evidence and persuading the trier of fact that the defendant employer engaged in impermissible disability discrimination against him or her as a qualified individual, as defined by the FEHA, is consistent with the general rule in California that “a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief. . . that he is asserting.” (Evid.

Code, § 500.) As in the typical civil action seeking relief in a California court, it is reasonable to require a plaintiff who alleges a FEHA violation as a basis for recovery to prove the elements of a claim for violation of the ADA, including by proving the element that the defendant impermissibly discriminated because the plaintiff was able to do the job with or without reasonable accommodation. Plaintiff contends that the employer bears the burden to prove that a plaintiff employee is not qualified to sue under the FEHA, essentially asserting that the lack of qualification constitutes an affirmative defense.

In support of this argument, plaintiff points to language in the FEHA stating the statutory provisions apply to any person making a discrimination claim. In plaintiff’s view, this particular language in the FEHA differs significantly from the ADA, which omits the “any person” language and instead reflects an unambiguous intent to protect a “qualified individual” only.

The Court of Appeal agreed with plaintiff, reasoning that the statutory phrase “any person” applies to any plaintiff alleging a claim of disability discrimination under the FEHA. (§ 12940, subd. (a).) The court interpreted the FEHA’s use of this phrase to mean that a plaintiff need not prove that he or she satisfies the ADA’s “qualified individual” requirement, but that lack of qualification would be an affirmative defense. We are not persuaded.

The FEHA’s use of the term “any person” in listing the various forms of prohibited discrimination does not warrant disregard of the specific language unambiguously providing that an adverse employment action on the basis of disability is not prohibited if the disability renders the employee unable to perform his or her essential duties, even with reasonable accommodation. When read together with

section 12940, subdivision (a)(1), subdivision (a)’s reference to “any person” cannot reasonably be understood to specially alter the ordinary burden of proof set forth in Evidence Code

section 500. Had the Legislature actually intended to relieve a plaintiff employee of the burden of proving an actionable discrimination on the basis of disability, thereby departing significantly from federal law, we believe it could and would have done so in a more conspicuous manner.

Contrary to plaintiff’s contention and the Court of Appeal’s position, the FEHA and the ADA both limit their protective scope to those employees with a disability who can perform the essential duties of the employment position with reasonable accommodation. (Compare § 12940, subd. (a)(1) with 42 U.S.C. §§ 12111(8), 12112(a).) We see no statutory basis for construing the FEHA any differently from the ADA with regard to a plaintiff employee’s burden of proof. B.

Plaintiff’s Additional Claims Plaintiff contends that our statute is not clear, and that confusion on the burden of proof requirement is apparent in jury instructions on the definition of “qualified individual.” For example, under BAJI No. 12.12, an instruction that was given in this case over defendant’s objection that it should be amended to include a qualification element, the plaintiff is not required to prove his or her ability to perform the essential duties of the job with or without reasonable qualification.

By contrast, the Judicial Council of California Civil Jury Instructions include the capacity to perform the essential duties of the job as one of the elements of proof for a disability discrimination claim under

section 12940, subdivision (a). (Judicial Council of Cal. Civ. Jury Instns. (June 2006 rev.) CACI No. 2540.) The Directions for Use for CACI No. 2540 observe, however, that “there [is] a divergence of authority on whether the plaintiff is required to prove that he or she has the ability to perform the essential duties of the job.” The Directions for Use following CACI No. 2540 compare Brundage with a later decision, Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344 [118 Cal.Rptr.2d 443]. Bagatti dealt with

section 12940, subdivision (m), which governs an employer’s obligation to afford reasonable accommodations to a worker with a disability. The court held that the plaintiff was not required to prove whether she could perform the essential functions of her position in order to establish a prima facie case of discrimination, concluding that these were requirements under the ADA but not under the FEHA. (Bagatti, supra, 97 Cal.App.4th at pp. 360-362.) Although it agreed with the Bagatti holding, the Court of Appeal here correctly concluded that Bagatti provided little guidance on the qualification issue because it involved a cause of action for the failure to accommodate under

section 12940, subdivision (m), and the court believed it was unlikely the jury relied on the plaintiff’s reasonable accommodation cause of action in reaching its verdict.

In addition, in claiming ambiguity under the FEHA, plaintiff also relies on the fact that in 1992 the Legislature amended the FEHA in order to replace the former term “physical handicap” with the term “physical disability” and to provide a greater amount of protection to employees than that provided under the 1990-enacted ADA. (§ 12940, as amended by Stats. 1992, ch. 913, § 23.1, pp. 4313-4316.) In amending the FEHA in significant part, including replacing the former term “physical handicap” with the term “physical disability,” the Legislature stated: “It is the intent of the Legislature in enacting this act to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].” (Stats. 1992, ch. 913, § 1, p. 4282; see Colmenares v.

Braemar Country Club, Inc., supra, 29 Cal.4th at p. 1026.) In 2000, the Legislature also declared: “Although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.” (§ 12926.1, subd. (a).) The fact that the Legislature intended to provide plaintiffs with broader substantive protection under the FEHA, however, does not affect the Legislature’s contemplation that a plaintiff must prove that he or she can perform the essential functions of the job in order to prevail on a claim under the FEHA.

As we have explained, in disability discrimination actions, the plaintiff has not shown the defendant has done anything wrong until the plaintiff can show he or she was able to do the job with or without reasonable accommodation. Plaintiff next contends that the California Code of Regulations further supports his statutory

interpretation because it emphasizes the differences between the FEHA requirements and the ADA. The dissent claims that the administrative agency’s adoption of the regulations is entitled to great weight and supports plaintiff’s position. The regulations provide that in California: “Disability discrimination is established by showing that an employment practice denies, in whole or in part, an employment benefit to an individual because he or she is an individual with a disability.” (Cal.

Code Regs., tit. 2, § 7293.7.) Plaintiff claims that the regulations provide additional support for his claim that under the FEHA, whether an employee is qualified or has the ability to perform the job’s essential duties is for the employer to prove as part of its defense of the disability action. To the extent the California Code of Regulations arguably creates ambiguity about the element of proof of a disability discrimination claim (see, e.g., Cal. Code Regs., tit. 2, § 7293.8, subd. (b)), we find the Legislature’s intent supports defendant’s position and must prevail. (See Morris v.

Williams (1967) 67 Cal.2d 733, 748 [63 Cal.Rptr. 689, 433 P.2d 697] [administrative regulations that alter or amend a statute or enlarge or impair its scope are void and courts may strike them down].) Initially, plaintiff fails to consider the fact that since its codification, the FEHA has not imposed liability on an employer if an employee, even a disabled employee, could not perform his or her duties with or without reasonable accommodation.

Indeed, the Legislature has never indicated the intent to compel an employer to employ such a person who could not perform the essential job duties with or without reasonable accommodation. To do so would defy logic and establish a poor public policy in employment matters. C.

Instructional Error As noted, the trial court read a pattern instruction to the jury that did not require plaintiff to shoulder the burden of proving he was qualified for the position, notwithstanding defendant’s request that the instruction be modified to include the requirement. (BAJI No. 12.12.) The trial court did not instruct the jury on the FEHA’s requirement that plaintiff must prove he was qualified for the position, or able to perform the job’s essential duties.

Both parties requested the jury be given BAJI No. 12.14, the “inability to perform defense,” but the trial court inexplicitly omitted the instruction. Neither party objected to the omission, but the failure to object does not waive any right to the instruction because it is incumbent upon the trial court to instruct on all vital issues in the case. (Manguso v.

Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 581-582 [200 Cal.Rptr. 535] [erroneous instruction on material element of law deemed excepted to even absent objection at trial].) Instructional error in a civil case is prejudicial “ ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ ” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 [34 Cal.Rptr.2d 607, 882 P.2d 298].) The jury here was never instructed that plaintiff must prove that he was able to perform the job’s essential duties.

For this reason, defendant was prejudiced by the failure to so instruct, and we believe defendant is entitled to a new trial, with proper instructions, unless the evidence shows as a matter of law that plaintiff cannot meet his burden. III. CONCLUSION Based on the foregoing, we conclude that under the FEHA, a plaintiff must demonstrate that he or she was qualified for the position sought or held in the sense that he or she is able to perform the essential duties of the position with or without reasonable accommodation. Juries should be so instructed.

We therefore reverse the judgment of the Court of Appeal and remand the matter for proceedings consistent with this decision. George, C. J., Baxter, J., and Corrigan, J., concurred. All statutory references are to the Government Code unless otherwise stated.