Essential Job Duties in Disability Discrimination Claims—California Law

Introduction

California law protects qualified employees with disabilities from discrimination, but only if they can perform the “essential job duties” of their position, with or without reasonable accommodation. Gov. Code §§ 12926(f), 12940(a)(1). Determining which duties are essential—and which are merely marginal—is a fact-driven process that considers multiple sources of evidence. Nealy v. City of Santa Monica, 234 Cal.App.4th 359, 373 (2015).

How Essential Duties Are Determined

A job duty may be considered “essential” if:

• The reason the job exists is to perform that duty;

• There are only a limited number of employees available who can perform it;

• The duty is highly specialized, and the position requires particular expertise to perform it.

Gov. Code § 12926(f); Lui v. City and County of San Francisco, 211 Cal.App.4th 962, 971 (2012).

Sources of Evidence

Relevant evidence in deciding whether a job duty is essential may include:

1. The employer’s judgment about which duties are essential;

2. Written job descriptions prepared before advertising or interviewing for the job;

3. The amount of time regularly spent performing the duty;

4. The consequences of not performing the duty;

5. Terms of a collective bargaining agreement;

6. Experiences of past employees in the position;

7. Experiences of employees in similar roles;

8. References to the duty’s importance in performance reviews.

Atkins v. City of Los Angeles, 8 Cal.App.5th 696, 717–18 (2017).

Marginal Duties Explained

Essential duties do not include marginal job functions. Marginal duties are those that, if not performed, would not eliminate the need for the position, could easily be performed by someone else, or could be done in an alternative way. 2 Cal. Code Regs. § 11065(e)(3); Nealy, 234 Cal.App.4th at 373 (2015).

Practical Guidance for California Employers

• Employers should maintain accurate and up-to-date job descriptions emphasizing essential duties.

• Review and document why each duty is considered essential based on business needs and operational realities.

• During accommodation discussions, focus on whether the employee can perform the role’s essential—not marginal—functions.

This nuanced, evidence-based approach helps comply with California disability discrimination law and provides fair opportunity for all employees.

Citations

Gov. Code §§ 12926(f), 12940(a)(1); Nealy v. City of Santa Monica, 234 Cal.App.4th 359, 373 (2015); Lui v. City & Cty. of San Francisco, 211 Cal.App.4th 962, 971 (2012); Atkins v. City of Los Angeles, 8 Cal.App.5th 696, 717–18 (2017); 2 Cal. Code Regs. § 11065(e)(3).