California Government Code Section 12940 - Interpretation

In Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256, the appellate court, relying on federal decisions construing the ADA, ruled that "[t]he elements of a failure to accommodate claim are similar to the elements of a [section] 12940, subdivision (a) discrimination claim, but there are important differences. the plaintiff must, in both cases, establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual. for purposes of a section 12940, subdivision (k) [now (m)] claim, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position." The court in Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 361, fn. 4, disagreed with Jensen "to the extent it holds that, in order to assert a claim for failure to accommodate, a plaintiff must show that he or she is 'a qualified individual' with the meaning of [the ADA]." the disagreement was based upon the language of the FEHA. the Bagatti court emphasized that the FEHA ( 12940, subd. (m)), unlike the ADA (42 U.S.C. 12112, subd. (b)(5)(A)), 12 does not expressly "require that reasonable accommodation for disability be made only where the person is a 'qualified individual' able to perform the essential functions of the job . . . ." (Bagatti, supra, 97 Cal.App.4th at p. 361.) for that reason, the court ruled that "the duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA." (Id. at p. 362.)