Required Elements for Discrimination

FEHA makes it an unlawful employment practice to discriminate against any person because of a physical or mental disability. Cal. Gov. Code § 12940(a). A prima facie case for discrimination “on grounds of physical disability under the FEHA requires plaintiff to show:

1. he suffers from a disability;
2. he is otherwise qualified to do his job; and,
3. he was subjected to adverse employment action because of his disability.

Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 at 355; Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84; Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.

Motion Practice and Burden Shifting

“On a motion for summary judgment brought against such a cause of action the plaintiff bears the burden of establishing a prima facie case of discrimination based upon physical disability, and the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action.” (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) “Once the employer has done so the plaintiff must offer evidence that the employer’s stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.” (Id.)

Required Elements for Failure to Prevent

In order for plaintiff to allege a valid claim for failure to prevent disability discrimination, he must allege

1. an actionable discrimination claim against the Defendant and
2. that the Defendant failed to take reasonable steps to prevent the alleged discrimination against plaintiff.

See, CACI 2527; Northrop Grumman Corporation v. Workers’ Compensation Appeals Board (2002) 103 Cal.App.4th 1021, 1035.

“Where Plaintiff’s failure to prevent claim is their contention that there was no discrimination or harassment... as a consequence the failure to prevent claim fails.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 stating there can be no violation of § 12940(k) where there has been no discrimination.)