Green v. State of Cal., 132 Cal. App. 4th 97 (2005)

Dwight Green worked as a stationary engineer at a state correctional facility for over 12 years before he was involuntarily placed on disability retirement. A jury found that in failing to provide Green reasonable accommodation for his Hepatitis C condition, the state discriminated against him on the basis of his disability in violation of the FEHA. The jury awarded Green approximately $600,000 in economic damages and $2 million in non-economic damages. The Court of Appeal affirmed the judgment and rejected the state’s argument that Green was required to prove that he was qualified to perform the essential duties of the job in question; instead, the Court held that it was the employer’s burden to prove that the employee was incapable of performing such duties with reasonable accommodation. The Court further held that the “business necessity” defense is inapplicable in a disparate treatment case such as this and that the “bona fide occupational qualification” defense was inapplicable on the facts of this case. Cf. Knight v. Hayward Unified School Dist., 132 Cal. App. 4th 121 (2005) (employer’s failure to provide insurance coverage for in vitro fertilization did not constitute disability discrimination); Louis v. U.S. Dep’t of Labor, 419 F.3d 970 (9th Cir. 2005) (federal employee was not entitled to disability workers’ compensation records from DOL that were prepared in anticipation of litigation); EEOC v. UPS, 424 F.3d 1060 (9th Cir. 2005) (UPS properly denied driving positions to employees with monocular vision based on FEHA’s “safety-of-others” defense).