Justia Lawyers and the Legal Process Center California Civil Jury Instructions (CACI) (2025) Fair Employment and Housing Act CACI No. 2543. Disability Discrimination - “Essential Job Duties” Explained (Gov. Code, §§ 12926(f), 12940(a)(1))

CACI No. 2543. Disability Discrimination - “Essential Job Duties” Explained (Gov. Code, §§ 12926(f), 12940(a)(1))

Judicial Council of California Civil Jury Instructions (2025 edition)

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2543.Disability Discrimination - “Essential Job Duties” Explained

(Gov. Code, §§ 12926(f), 12940(a)(1))

In deciding whether a job duty is essential, you may consider, among

other factors, the following:

a. Whether the reason the job exists is to perform that duty;

b. Whether there is a limited number of employees available who

can perform that duty;

c. Whether the job duty is highly specialized so that the person

currently holding the position was hired for the person’s expertise

or ability to perform the particular duty.

Evidence of whether a particular duty is essential includes, but is not

limited to, the following:

a. [Name of defendant]’s judgment as to which functions are

essential;

b. Written job descriptions prepared before advertising or

interviewing applicants for the job;

c. The amount of time spent on the job performing the duty;

d. The consequences of not requiring the person currently holding

the position to perform the duty;

e. The terms of a collective bargaining agreement;

f. The work experiences of past persons holding the job;

g. The current work experience of persons holding similar jobs;

h. Reference to the importance of the job in prior performance

reviews.

“Essential job duties” do not include the marginal duties of the position.

“Marginal duties” are those that, if not performed would not eliminate

the need for the job, or those that could be readily performed by

another employee, or those that could be performed in another way.

New September 2003; Revoked June 2013; Restored and Revised December 2013;

Revised May 2020

Directions for Use

Give this instruction with CACI No. 2540, Disability Discrimination - Disparate

Treatment - Essential Factual Elements, or CACI No. 2541, Disability

Discrimination - Reasonable Accommodation - Essential Factual Elements, or both,

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if it is necessary to explain what is an “essential job duty.” (See Gov. Code,

§§ 12926(f), 12940(a)(1); see also Furtado v. State Personnel Bd. (2013) 212

Cal.App.4th 729, 743-744 [151 Cal.Rptr.3d 292].) While the employee has the

burden to prove that the employee can perform essential job duties, with or without

reasonable accommodation, it is unresolved which party has the burden of proving

that a job duty is essential. (See Lui v. City and County of San Francisco (2012)

211 Cal.App.4th 962, 972-973 [150 Cal.Rptr.3d 385].)

Sources and Authority

• Ability to Perform Essential Duties. Government Code section 12940(a)(1).

• “Essential Functions” Defined. Government Code section 12926(f).

• Evidence of Essential Functions. 2 California Code of Regulations section

11065(e)(2).

• Marginal Functions. 2 California Code of Regulations section 11065(e)(3).

• “ ‘ “Essential functions” means the fundamental job duties of the employment

position the individual with a disability holds or desires. “Essential functions”

does not include the marginal functions of the position.’ ‘ “Marginal functions”

of an employment position are those that, if not performed, would not eliminate

the need for the job or that could be readily performed by another employee or

that could be performed in an alternative way.’ ‘A job function may be

considered essential for any of several reasons, including, but not limited to, any

one or more of the following: [¶] (A) . . . [T]he reason the position exists is to

perform that function. [¶] (B) . . . [T]he limited number of employees available

among whom the performance of that job function can be distributed. [¶] [And]

to perform the particular [highly specialized] function.’ ” (Nealy v. City of Santa

Monica (2015) 234 Cal.App.4th 359, 373 [184 Cal.Rptr.3d 9], internal citations

omitted.)

• “Evidence of ‘essential functions’ may include the employer’s judgment, written

job descriptions, the amount of time spent on the job performing the function,

the consequences of not requiring employees to perform the function, the terms

of a collective bargaining agreement, the work experiences of past incumbents in

the job, and the current work experience of incumbents in similar jobs.” (Atkins

v. City of Los Angeles (2017) 8 Cal.App.5th 696, 717-718 [214 Cal.Rptr.3d

113].)

• “The trial court’s essential functions finding is also supported by the evidence

presented by defendant corresponding to the seven categories of evidence listed

in [Government Code] section 12926(f)(2). ‘Usually no one listed factor will be

dispositive . . . .’ ” (Lui, supra, 211 Cal.App.4th at p. 977.)

• “The question whether plaintiffs could perform the essential functions of a

position to which they sought reassignment is relevant to a claim for failure to

accommodate under section 12940, subdivision (m), and to a claim for failure to

engage in the interactive process under section 12940, subdivision (n).” (Atkins,

supra, 8 Cal.App.5th at p. 717.)

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• “The identification of essential job functions is a ‘highly fact-specific inquiry.’ ”

(Lui, supra, 211 Cal.App.4th at p. 971.)

• “It is clear that plaintiff bore the burden of proving ‘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).’ It is less clear

whether that burden included the burden of proving what the essential functions

of the position are, rather than just plaintiff’s ability to perform the essential

functions. Under the ADA, a number of federal decisions have held that

‘[a]lthough the plaintiff bears the ultimate burden of persuading the fact finder

that he can perform the job’s essential functions, . . . “an employer who disputes

the plaintiff’s claim that he can perform the essential functions must put forth

evidence establishing those functions.” [Citation.]’ . . . Arguably, plaintiff’s

burden of proving he is a qualified individual includes the burden of proving

which duties are essential functions of the positions he seeks. Ultimately, we

need not and do not decide in the present case which party bore the burden of

proof on the issue at trial . . . .” (Lui, supra, 211 Cal.App.4th at pp. 972-973,

internal citations omitted.)

• “[R]equiring employers to eliminate an essential function of a job to

accommodate a disabled employee ‘would be at odds with the definition of the

employee’s prima facie case’ under FEHA. The employee’s burden includes

‘showing he or she can perform the essential functions of the job with

accommodation, not that an essential function can be eliminated altogether to

suit his or her restrictions.’ ” (Atkins, supra, 8 Cal.App.5th at p. 720.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 1045-1049

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California

Fair Employment and Housing Act (FEHA), ¶¶ 9:2247, 9:2247.1, 9:2247.2,

9:2402-9:2402.1 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination

Claims, § 2.79

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under

Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment

Discrimination, §§ 115.22, 115.54, 115.104 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)

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Page last reviewed April 2025