Disability Discrimination—Affirmative Defense: Health or Safety Risk in California Workplaces

Introduction

Under California’s Fair Employment and Housing Act (FEHA), employers must not discriminate against employees with disabilities. However, the law recognizes a narrow affirmative defense: if an employee poses an immediate and substantial health or safety risk to themselves or others—despite reasonable accommodations—an employer may avoid liability. Gov. Code § 12940(a)(1); Cal. Code Regs., tit. 2, § 11067(b)-(e).

Legal Standard for the Defense

To establish this defense, the employer must prove:

• The relevant job duty is essential.

• No reasonable accommodation would allow the employee to perform it safely.

• Actual performance of the duty would present an immediate and substantial risk to the employee or others.

This assessment must avoid speculation or blanket assumptions. Only present, significant risk—supported by current medical or objective evidence—satisfies the law’s strict requirements. Wittkopf v. County of Los Angeles, 90 Cal.App.4th 1205, 1218-19 (2001); Raytheon Co. v. Fair Employment & Housing Com., 212 Cal.App.3d 1242, 1252 (1989).

Factors for Assessing Health or Safety Risk

Courts may consider:

• How long the risk would last.

• The seriousness and type of potential harm.

• The probability and imminence of harm occurring.

• Prior work history of the employee.

• Any other relevant, fact-specific considerations.

All analysis should be based on reliable medical judgment or other up-to-date objective evidence. Cal. Code Regs., tit. 2, § 11067(e).

Not a Defense for “Future Risk”

Employers cannot justify discrimination by citing a disability that might—possibly or eventually—cause problems in the future. The danger must be immediate. Sterling Transit Co. v. Fair Employment Practice Com., 121 Cal.App.3d 791, 798–99 (1981).

Practical Guidance for California Employers

• Assess each situation individually, focusing on objective facts and reliable medical evidence.

• Seek possible accommodations before asserting the defense.

• Document the analysis and evidence considered in making health or safety determinations.

• Avoid relying on stereotypes or hypothetical risks.

This defense is strictly construed, and employers bear the burden of proving every element.

Citations

Gov. Code § 12940(a)(1); Cal. Code Regs., tit. 2, § 11067(b)-(e); Wittkopf v. County of Los Angeles, 90 Cal.App.4th 1205, 1218–19 (2001); Sterling Transit Co. v. Fair Employment Practice Com., 121 Cal.App.3d 791, 798–99 (1981); Wills v. Superior Court, 195 Cal.App.4th 143, 169 (2011); Raytheon Co. v. Fair Employment & Housing Com., 212 Cal.App.3d 1242, 1252 (1989).