In Green v. State of California, the California Supreme Court held that plaintiffs bringing a claim of disability discrimination under the Fair Employment and Housing Act (FEHA) have the burden of proving that they are able to perform the essential functions of the job.

Under FEHA, an employer is not liable for an adverse employment action against an applicant or employee who is not "qualified" – that is, unable to perform the position with or without reasonable accommodation. Previously, however, California courts were split as to whether the plaintiff or the employer bore the burden of demonstrating qualification (or lack thereof) at trial.

In Green, plaintiff, a stationary engineer at a correctional facility, suffered from Hepatitis C and was placed on light duty at the request of his doctor. After several complications plaintiff was denied his request to return to his original job and effectively forced to retire. The employee sued for disability discrimination under FEHA. The jury found for plaintiff and awarded him $2.6 million.

The California Supreme Court overturned the lower court's decision, holding that, just as under the federal Americans with Disabilities Act (ADA), the burden is on the employee to demonstrate that he or she can perform the essential functions of the job.

Although the Green case is ultimately a victory for employers, it underscores the continued importance of carefully evaluating whether an employee with a disability is able to perform the essential functions of their position with or without accommodation before making any employment decision. While this case makes FEHA consistent with federal law in terms of the burden of proof, California employers should continue to exercise caution when faced with issues related to disability or medical leaves as the protections and scope of FEHA are in some instances broader than those of the ADA.