What defenses are available to employers under Fair Employment and Housing Act (FEHA) when facing disability discrimination claims? 

Fair Employment and Housing Act (FEHA) provides employers with several legitimate defenses to disability discrimination claims, while maintaining strong protections for disabled employees. These defenses reflect the balance between protecting disabled individuals’ rights and recognizing legitimate business needs and safety concerns. 

Undue Hardship Defense: Government Code Section 12940(m) allows employers to avoid providing reasonable accommodation if they can demonstrate that doing so would cause undue hardship to their operations. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of specific factors.  

These factors include the nature and cost of the needed accommodation, considering available tax credits, deductions, and outside funding; the overall financial resources of the facilities providing accommodation, including the number of employees and the effect on expenses, resources, and operations; the overall resources of the covered entity, including business size, number of employees, and number, type, and location of facilities; the type of operations, including workforce composition, structure, and functions; and the geographic separateness and administrative or fiscal relationship of involved facilities.  

The undue hardship analysis is fact-specific and must consider the employer’s entire operation, not just the immediate workplace. Employers bear the burden of proving undue hardship by demonstrating that accommodation would require significant difficulty or expense relative to their resources and operations. 

Inability to Perform Essential Functions: While not technically a defense, proving that an employee cannot perform essential job functions defeats a fundamental element of the plaintiff’s case. Government Code Section 12940(a)(1) permits employers to discharge or refuse to hire individuals with disabilities who are unable to perform his or her essential duties even with reasonable accommodations.  

Essential functions are defined as the fundamental job duties of the employment position and do not include marginal functions. Factors for determining essential functions include whether the position exists to perform the function, the number of employees among whom the function can be distributed, and whether the employee was hired for specialized expertise in performing the function.  

Courts consider various evidence including whether the employer regards the function as essential, written job descriptions prepared before advertising, time spent performing the function, consequences of not requiring performance, collective bargaining agreements, work experiences of past and current incumbents, and performance review references to the function’s importance.  

Bona Fide Occupational Qualification (BFOQ): Government Code Section 12940 provides that refusing to hire, advance, or discharging an individual with a disability is not unlawful if the decision is based upon a bona fide occupational qualification. A BFOQ is a practice that excludes an entire class of persons and is valid where the employer can demonstrate that all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and the essence of the business operation would otherwise be undermined.

If a BFOQ exists, employers may exclude from employment all persons within a protected class even if certain members could actually perform safely and efficiently. However, the ADA’s preemption of state laws providing less protection may limit this defense’s availability, though no definitive case authority exists on this point.  

Business Necessity for Disparate Impact: Employers may defend facially neutral practices with adverse impact on disabled individuals by proving an overriding legitimate business purpose exists for the practice, making it necessary for safe and efficient operations; the practice effectively fulfills its intended purpose; and no alternative practice would accomplish the purpose equally well with lesser discriminatory impact.  

This defense applies only to disparate impact cases where protected classes are disproportionately affected by neutral employment practices, not to disparate treatment cases involving direct discrimination. Employers may use selection processes or testing devices if they can show sufficient relation to essential job functions to warrant their use.  

Threat to Health or Safety: After engaging in the interactive process, employers may discharge or refuse to hire disabled individuals who cannot perform essential functions safely, either for themselves or others, even with reasonable accommodation. This defense requires individualized assessment tailored to each applicant’s characteristics in relation to specific, legitimate job requirements, unlike the broader BFOQ defense.  

Employers bear the burden of proving by a preponderance of evidence that the employee’s performance poses a threat to safety. The threat must involve significant potential for harm—even modest increases in risk can be significant when consequences involve death or serious bodily injury.  

Relevant factors include duration of risk, nature and severity of potential harm, likelihood that harm will occur, imminence of potential harm, and the employee’s past work history. The analysis should be based on reasonable medical judgment relying on current medical knowledge and best available objective evidence.  

Importantly, future threats of harm are not sufficient—the condition must presently interfere with safe job performance, though what constitutes a reasonable length of time is determined individually. Employers’ irrational beliefs unsupported by medical evidence cannot support this defense.  

Direct Threat Standard Application: An individualized showing that a plaintiff failed to meet generally applicable job qualification standards may establish a safety defense where substantial evidence supports the standards’ reasonableness as safety measures. The risk to safety is inferred from the plaintiff’s failure to comply with reasonable standards designed to ensure safety. 

Valid Arbitration Agreements: Employment discrimination claims under FEHA may be subject to arbitration if valid arbitration agreements exist, providing employers with a procedural defense that can limit litigation exposure and costs.  

Employer Discretion in Accommodation Selection: While not a complete defense, employers have discretion to implement an accommodation that is effective in allowing the applicant or employee to perform the essential functions of the job and may choose the less expensive accommodation or the accommodation that is easier for it to provide. This discretion allows employers to control accommodation costs while meeting their legal obligations. 

These defenses reflect FEHA’s balance between protecting disabled individuals and recognizing legitimate business concerns, though they must be applied consistently with the Act’s broad remedial purposes.