“Strenuous Duties” May Be Essential Functions Even For Administrative Sworn-Officer Positions

Kenneth Lui v. City and County of San Francisco,2012 Cal. App.
LEXIS 1248 (December 11, 2012)

Police departments across the state should take note: a California appellate court has held that “strenuous duties” are essential functions of administrative sworn-officer positions in the San Francisco Police Department.

In Lui v. City and County of San Francisco, the First Appellate District affirmed the trial court’s judgment against a disabled retired officer who had raised Fair Employment and Housing Act (FEHA) disability claims against the San Francisco Police Department.  The court held that even though officers in administrative positions were not frequently required to engaged in strenuous activities such as making forcible arrests and detentions, these activities were essential because “the Department has a legitimate need to be able to deploy officers in those position in the event of emergencies and mass mobilizations.”

Under the FEHA, a function may be essential because a limited number of employees are available to perform that function.  Cal. Gov. Code § 12926(f)(1)(B).  The court relied heavily on this factor, discussing the City’s evidence that the Department “needs to be able to mobilize as many full duty police officers as possible to respond to mass celebrations, demonstrations, and earthquakes, and other large-scale emergencies” during which officers would be required to perform strenuous activities.

The court distinguished cases such as Cuiellette v. City of Los Angeles.  There, the LAPD had a longstanding policy and practice of allowing sworn officers to perform light-duty positions that did not entail several strenuous essential functions such as making arrests, taking suspects into custody, and driving a police vehicle in emergency situations.  In that case, because the LAPD maintained light-duty positions for disabled officers, “the essential functions of those positions were not the same as the essential functions of a police officer in the field.”

But in San Francisco, the Department had changed its policies and no longer offered permanent light-duty positions.  Instead, such positions were limited to one year.  As a result, the court held that the FEHA did not require the Department to make a temporary light-duty position permanent, or to convert an administrative position into one exempt from strenuous activities.

A word of caution: police departments should not read Lui as standing for a clear rule that strenuous activities “are always” essential functions for administrative sworn-officer positions; rather, they “may” be essential functions.  In Lui, San Francisco’s Charter required a police force of 1,971 full-duty officers, yet the number of full-duty officers had fallen below that threshold.  Furthermore, the City produced evidence that, within the past ten years, it had experienced full force mobilizations (such as on the day of the 2003 invasion of Iraq) during which even those in administrative positions were mobilized.  Thus, the essential-function analysis remains fact dependent, and departments should consider consulting counsel before taking adverse action based on Lui.