The appeals court recently ruled in the case of Kenneth Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, that strenuous physical duties regularly performed by patrol officers can be essential functions of an administrative sworn peace officer.

Kenneth Lui, the Plaintiff, was employed as a police officer in the San Francisco Police Department. He suffered a heart attack and was diagnosed with diabetes, high blood pressure, high cholesterol, and coronary artery disease. The Plaintiff was on leave at full pay for 11 months and then transitioned to temporary modified duty. Pursuant to the Department General Order, temporary modified duty was limited to one year and permanent light duty assignments were eliminated, with the exception of the few who were grandfathered into the positions. Prior to returning to full duty, the officer had to be able to perform the essential functions of the full duty police officer, including physically strenuous tasks, even if assigned to administrative positions. The Plaintiff’s physician cleared him to return to work but restricted him from performing strenuous physical activities. At the end of the temporary modified duty, the Plaintiff opted for an industrial retirement.

Kenneth Lui filed a law suit claiming, among his causes of action, discrimination in violation of the Fair Employment and Housing Act (hereinafter “FEHA”) and failure to accommodate in violation of Fair Employment. FEHA makes it an unlawful employment practice for an employer, because of the physical disability or mental disability of any person, to bar or to discharge the person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. (Gov. Code section 12940(a).) A plaintiff prevailing on a FEHA claim must show that (1) he or she was discharged because of a disability and (2) he or she could perform the essential functions of the job with or without accommodation.

Plaintiff argued that Defendant was obligated to permanently place him in an administrative position. The Defendant argued that FEHA did not prevent the department from requiring that officers in administrative positions be required to perform the essential functions of the job, including physically strenuous activities.

The Court first assessed the Department’s need for requiring that administrative officers perform the essential functions of the job. The Court rationalized that each officer in a modified duty assignment was one less officer available to be deployed in an emergency. Due to budget cuts, the number of full duty officers would continue to decline. The Department provided evidence of the need to be able to mobilize as many full duty police officers as possible and cited to one event.