CASSISTA v. COMMUNITY FOODS

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Court of Appeal, Sixth District, California.

Toni Linda CASSISTA, Plaintiff and Appellant, v. COMMUNITY FOODS, et al., Defendants and Respondents.

No. H008552.

Decided: July 08, 1992

Robins, Kaplan, Miller & Ciresi and Stefanie M. Brown, San Francisco, for plaintiff and appellant. Grunsky, Ebey, Farrar & Howell, Frederick H. Ebey and Leslie J. Karst, Watsonville, for defendants and respondents.

Toni Linda Cassista sued Community Foods, Inc. and Will Hildeburn after Community Foods rejected her application for employment.   She claims that Community Foods denied her employment because it believed that her weight was a physical handicap.   Cassista's complaint was brought under the Fair Employment and Housing Act (FEHA).  (Gov.Code, § 12900 et seq.)

Following a jury verdict for Community Foods, Cassista filed this appeal.1  She argues:  (1) the jury instructions should not have required her to prove that “but for” her weight, she would have been hired;  (2) expert testimony should not have been admitted;  and (3) the court issued inconsistent instructions on an affirmative defense.   We conclude that the “but-for” jury instructions were erroneous.   Because the error was prejudicial, the judgment must be reversed and a new trial granted.

Facts and Procedural Background

Cassista is five feet four inches.   At the time she applied to Community Foods, she weighed 305 pounds.   She had previously managed a submarine sandwich shop and had also been employed in several restaurants.   She had also worked as an aide in nursing homes and provided care for both ambulatory and nonambulatory patients.

Community Foods is a health food store in Santa Cruz, California.   Founded as a neighborhood co-op approximately 18 to 20 years ago, Community Foods employs 16 to 17 individuals.   New employees are known as “new workers” who have the potential to become “collective members” with management and ownership interests in the store.

In 1987, Community Foods had three vacant positions.   These positions required that the employee perform duties such as running the register, stocking 50–pound bags of grain, carrying 50–pound boxes, retrieving groceries from the warehouse, changing 55–gallon drums, and carrying large crates of milk.

Michael Bolero, a friend of Cassista who was employed at Community Foods, told her about the three openings.   Cassista was very interested in working at Community Foods because she believed that the collective shared her “political awareness of issues and consciousness and concerns regarding the community and the environment and people.”

As the first step in Community Foods' hiring process, applications were submitted in response to advertisements.   Prospective employees were then “screened” by one or two Community Foods members.   Afterwards, a portion of those screened were interviewed by Community Foods' hiring committee.

Cassista completed an employment application, was screened, and then was interviewed by the hiring committee.   Her interview lasted approximately 30 minutes and covered topics such as job requirements and her employment history.   Toward the end of the interview, the hiring committee asked her if she had any physical limitations which would interfere with her ability to do the job.   She said that she did not.   Although Cassista was told that she would be contacted about the hiring committee's decision, Community Foods did not notify her.   She subsequently learned that three other individuals had been chosen for the positions.

Shortly thereafter, Cassista discovered that there was yet another opening at Community Foods.   She contacted Will Hildeburn, Community Foods' personnel coordinator and a member of the hiring committee.   Hildeburn agreed to resubmit her application.   When Cassista did not hear from Hildeburn, she telephoned him to find out if she had been selected for the position.   Hildeburn told Cassista that she had not been chosen.

Cassista asked Hildeburn what she should do to prepare for future openings.   According to Hildeburn, he stated that the individuals chosen had more experience.   Hildeburn also admitted telling Cassista that “there was some concern about [your] weight.”   According to Cassista, Hildeburn's statement was more explicit.   She recalls that he said, “Well, Toni, members were concerned that you couldn't physically do the work due to your weight.”   She also denied that Hildeburn referred to her inexperience when explaining Community Foods' employment decision.

Upset by Hildeburn's remark, Cassista wrote a letter to Community Foods about the matter.   In response, Community Foods arranged to meet with her as part of a “consciousness-raising” session to discuss her concerns.   Before the meeting, Hildeburn mentioned Cassista's employment application to a friend.   Hildeburn stated, “Well, ․ if you had some people coming in, you know, several people coming in to apply for a job and three of them weighed about 150 and one of them weighed about 250, who would you hire?”

At the meeting between Cassista and Community Foods members, Hildeburn apologized for hurting Cassista's feelings.   Community Foods members then discussed the effect of weight upon job performance.   For example, one member stated, “I had been seven months pregnant and remembered having a hard time getting down the aisles at Community Foods, one in particular․   I did a lot of stocking, and there was an area in the back that we often put back stock in order to get a case of juice out, or to climb up a ladder and get a box off the shelf, after a while, as I got larger, I found it very difficult to do that.”   Another member stated, “at times when I am overweight—my weight fluctuates sometimes ․ when I am heavier, my feet hurt and my lower back usually hurts, because my stomach is, you know, pulling my back.”

Dissatisfied with the remarks at the meeting, Cassista decided to file a complaint with the Department of Fair Employment and Housing (DFEH).   Shortly thereafter, Community Foods offered her a position with the store.   Explaining that she did not believe Community Foods had educated itself about the concerns of overweight persons, Cassista refused the offer of employment.   She believed Community Foods offered her the position only because she had complained to the DFEH.2

After the DFEH decided not to issue a complaint, Cassista filed suit against Community Foods, alleging that it denied her employment “in that [it] regarded her as having a physical handicap, i.e., too much weight.”   Cassista alleged that Community Foods' employment practices violated the California Fair Employment and Housing Act.  (Gov.Code, § 12900 et seq.)   Community Foods answered the complaint, and denied its allegations.

On April 9, 1991, the matter was tried before a jury.   At trial, Community Foods members testified that the only reason Cassista was interviewed was because of her friendship with Bolero, a Community Foods employee.   According to this testimony, Cassista lacked grocery pricing or stocking experience.   The other applicants, by contrast, had such experience and had also worked at natural food stores.

Hiring committee members testified that Cassista was not experienced enough to work at Community Foods.   They stated that her inexperience was discussed amongst themselves after they had interviewed her.   They also wondered whether Cassista's outside interests would conflict with the needs of the store.   One member testified that Cassista was “forceful,” “opinionated and perhaps headstrong” and would not work well with the collective and cooperative nature of the business.

At trial, Hildeburn conceded that the hiring committee had discussed Cassista's weight.   Hildeburn testified that when he first saw Cassista he had concerns about her ability to do the job and doubted she could maintain the “pace” necessary to perform the duties required of a Community Foods employee.   Hildeburn admitted telling Cassista “that there was some concern about [Cassista's] weight” but testified that his concern was later alleviated after another member told him that weight would not affect a person's job performance.   Hildeburn also testified that “I gave [Cassista] an honest response․   I shouldn't have been honest.   I have talked to people here about it and an employer doesn't owe an employee an honest response, but I gave it to her.”

At trial, Hildeburn was asked, “how is it that Community Foods determines whether or not a person can do that physically demanding work?”   Hildeburn replied, “By trial, putting them out there and seeing how they do.”   According to the evidence presented, Community Foods normally employed a 200–hour probationary period to determine whether a new employee could perform the duties required.

Over Cassista's objection, safety engineer Dr. Robert Liptai testified about the health and safety aspects of employing a 305–pound person at a store such as Community Foods.   Liptai opined that a 305–pound person would pose a danger to both herself and others.   This was because of narrow aisles, the strain that frequent stooping would impose upon such a person, and the danger of having the employee use stepstools and ladders that were not strong enough to support her weight.

After the evidence was presented, the trial court instructed the jury on the law.   Among other things, the jury was instructed that Cassista was required to prove “that but for plaintiff's handicap she would have been hired by defendant․”   Although Cassista complained that this instruction was incorrect, the instruction was still given.

The jury returned a unanimous verdict in favor of Community Foods.

This appeal ensued.

Standard of Review

“A judgment or order of the lower court is presumed correct.   All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.   This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.”  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 268, p. 276.)

In reviewing an error in jury instructions, we must “ ‘assume that the jury might have believed the evidence upon which the instruction favorable to the losing party was predicated, and that if the correct instruction had been given upon that subject the jury might have rendered a verdict in favor of the losing party.’ ”  (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 674, 117 Cal.Rptr. 1, 527 P.2d 353.)

Discussion

Cassista argues she was required to prove:  (1) she had a physical handicap;  and (2) Community Foods' decision not to hire her was based, in part, upon that handicap.   Once these elements were established, Cassista contends it was Community Foods' burden to prove, by a preponderance of the evidence, that she would not have been hired even if her physical handicap had not been considered.

Community Foods construes Cassista's evidentiary burden differently.   It agrees that she must show that she was physically handicapped but argues that she also must prove that “but for” that handicap, she would have been hired.

The jury instructions conformed to Community Foods' interpretation of Cassista's evidentiary burden.   This was error.   As we shall explain, because this was a “mixed motives” case, Cassista was required to show only that her handicap played a motivating role in Community Foods' employment decision.   Once this requirement was met, it was Community Foods' burden to prove, by a preponderance of the evidence, that it would have made the same employment decision even if Cassista's weight had not been considered.   Having stated our conclusion, we will now explain how we reached this result.

A. Fair Employment and Housing Act

 In 1980, California enacted a comprehensive law prohibiting discrimination in employment.  (Gov.Code, § 12900 et seq.) 3  Known as the California Fair Employment and Housing Act (FEHA), the law forbids employers from refusing to hire or employ persons because of their race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex.  (Gov.Code, § 12940, emphasis added.) 4

In enacting the FEHA, the California Legislature recognized that a discriminatory employment practice “foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance, and substantially and adversely affects the interest of employees, employers, and the public in general.”  (Gov.Code, § 12920;  see also American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 186 Cal.Rptr. 345, 651 P.2d 1151.)

The FEHA defines a physical handicap as an “impairment of sight, hearing, or speech, or impairment of physical ability because of amputation or loss of function or coordination, or any other health impairment which requires special education or related services.”  (Gov.Code, § 12926, subd. (h);  see also American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal.3d 603, 186 Cal.Rptr. 345, 651 P.2d 1151;  County of Fresno v. Fair Employment & Housing Com. (1991) 226 Cal.App.3d 1541, 1549, 277 Cal.Rptr. 557.)

 “Handicapped Individuals” 5 include individuals who have a physical handicap as well as persons who are regarded as having a physical handicap.6  For example, the act applies to individuals who do not have a physical handicap “but [who are] treated by an employer or other covered entity as having or having had a physical handicap that presently substantially limits major life activities.”  (Cal.Code Regs., tit. 2, § 7293.6, subd. (h)(3), emphasis added;  see also American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal.3d 603, 186 Cal.Rptr. 345, 651 P.2d 1151.)

Major life activities are defined as “Functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.   Primary attention is to be given to those life activities that affect employability, or otherwise present a barrier to employment or advancement.”  (Cal.Code Regs., tit. 2, § 7293.6, subd. (f).)

In American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal.3d 603, 186 Cal.Rptr. 345, 651 P.2d 1151, the California Supreme Court held that high blood pressure constituted a physical handicap.   In so doing, the court emphasized that the FEHA should be liberally construed to effectuate its purposes.  (Id. at p. 610, 186 Cal.Rptr. 345, 651 P.2d 1151.)   The court stressed that the law “was designed to prevent employers from acting arbitrarily against physical condition that, whether actually or potentially handicapping, may present no current job disability or job-related health risk.”  (Id. at p. 610, 186 Cal.Rptr. 345, 651 P.2d 1151.)

B. Evidence of Physical Handicap

Although Cassista vigorously denies being physically handicapped, she claims Community Foods considered her weight to be a handicap.   Arguing that she was “treated by [Community Foods] as having ․ a physical handicap that presently substantially limits major life activities,” Cassista contends Community Foods' conduct was discriminatory.   To resolve her claim, we must determine whether her weight is a physical handicap, as defined.   In Cassista's case, this means there must be evidence that Community Foods believed Cassista's weight would limit her ability to engage in major life activities, as defined.

 After examining the record, we conclude that there was such evidence.   Hildeburn testified that when he interviewed Cassista he wondered whether she could maintain the pace necessary to perform the job.   He did not believe Cassista “could move as fast as the type of person ․ needed” and admitted that “upon seeing [Cassista he] had concerns that she would be able to keep up the pace of work․”   Hildeburn was asked, “Your concern regarding the pace of work that [Cassista] would be able to maintain came to your mind, in fact, at the interview when you saw [Cassista] as being a fat person?”   Hildeburn replied, “Yes, that is the thought that popped into my head.”

Moreover, after Cassista's employment application was rejected, she met with Community Foods members to discuss the issue of weight.   At that meeting, Community Foods members indicated that they believed weight would affect a person's ability to perform the job.   One member, relying upon the problems she encountered during her pregnancy, suggested that Cassista might have trouble moving around the store.   Another member wondered whether Cassista could perform her duties without undue physical strain.   In short, we conclude that the evidence established that Community Foods considered Cassista's weight to be a physical handicap as that term is defined under the FEHA.

C. But For Jury Instruction

Having so concluded, we next consider the second aspect of Cassista's evidentiary burden.   Was Cassista required to prove that “but for” her weight, she would have been hired?   The jury instructions imposed this requirement upon her.7  Although Community Foods contends the instructions were proper, as we shall explain, we conclude they did not contain a correct statement of the law.

In support of its argument that the “but-for” instruction was correct, Community Foods notes that it is unlawful for a employer to refuse to hire a person “because of [his or her] physical handicap.”  (Gov.Code, § 12940, emphasis added.)   Similarly, discrimination based upon physical handicap is established by “showing that an employment practice denies, in whole or in part, an employment benefit to an individual because he or she is a handicapped individual.”  (Cal.Code Regs., tit. 2, § 7293.7, emphasis added.)

Does the word “because” mean that Cassista must show that “but for” her physical handicap, she would have been hired?   Although this issue has not been considered by California courts, federal law interpreting title VII provides some guidance on the issue.8

In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268, a woman filed suit against the accounting firm that denied her a partnership.   She alleged discrimination based upon sex.   The United States Supreme Court, in a plurality opinion, examined section 703(a)(1) of the Civil Rights Act which prohibits an employer from making an adverse decision against an employee “because of such individual's ․ sex.”  (42 U.S.C. § 2000e–2(a)(1), (2), emphasis added.)   Rejecting the accounting firm's argument, the court decided that the words “because of,” did not require “but-for causation.”   In other words, the court found that a plaintiff in a sex discrimination case was not required to establish that “but for” her sex, she would have been hired.   Emphasizing that the words “because of” do not mean “solely because of,” the court reasoned that title VII “meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations.”  (Price Waterhouse v. Hopkins, supra, 490 U.S. at p. 240–41, 109 S.Ct. at p. 1785.)

The court stated, “We need not leave our common-sense at the doorstep when we interpret a statute.   It is difficult for us to imagine that, in the simple words ‘because of,’ Congress meant to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges.   We conclude, instead, that Congress meant to obligate her to prove that the employer relied upon sex-based considerations in coming to its decision.”  (Id. at p. 241–42, 109 S.Ct. at p. 1786.)

Once the plaintiff shows that gender played a part in the employer's decision, the employer may demonstrate that it still would not have hired the plaintiff even if gender had not been considered.  “[T]he defendant may avoid a finding of liability [fn. omitted] only by proving that it would have made the same decision even if it had not allowed gender to play such a role.   This balance of burdens is the direct result of Title VII's balance of rights.”  (Id. at p. 244–45, 109 S.Ct. at pp. 1787–1788.)  Price Waterhouse held that the employer's burden must be established by a preponderance of the evidence.   (Ibid.)

In reaching its result, Price Waterhouse decided its facts presented “mixed-motives,” i.e., a case where an employment decision is a mixture of both legitimate and illegitimate motives.   In so doing, the court distinguished its facts from so-called “pretext” cases, where either a legitimate or illegitimate set of considerations led to the employment decision.  (Id. at p. 247, 109 S.Ct. at p. 1789.)

Although Community Foods argues that this is a pretext case, we disagree.   A case is not a pretext case just because a defendant characterizes it as such.   If it were, defendants could sidestep the Price Waterhouse burden of proof requirements by simply claiming, after the fact, that they had only one legitimate reason for making their employment decision.   Community Foods adopts this tactic.   It alleges that Cassista's employment application was rejected because she lacked relevant experience, because her outside interests might interfere with her job performance, and because of health and safety reasons.   According to Community Foods, Cassista's weight was not a factor in its decision.

 Whether a case involves mixed motives or pretext depends upon the evidence presented.   If a plaintiff presents direct evidence of an illegitimate motive, then the case will be characterized as one involving mixed motives.9  (Id. at p. 247, 109 S.Ct. at p. 1789.)   In other words, the plaintiff must show that a forbidden characteristic “played a motivating part” in the employment decision.  (Id. at p. 250, 109 S.Ct. at p. 1790.)   If the plaintiff does not satisfy this requirement, then a pretext case is presented, and the evidentiary requirements for such cases should be applied.   (See, e.g., McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668;  Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207.)

 In this case, Cassista introduced direct evidence that weight played a motivating role in Community Foods' employment decision.   When Cassista asked why she was not hired, Hildeburn testified that he told her that those hired were more experienced.   Hildeburn also testified that he informed Cassista that “there was some concern about [Cassista's] weight.”  Disputing that Hildeburn mentioned her work experience, Cassista testified that he simply stated, “Well, Toni, members were concerned that you couldn't physically do the work due to your weight.”

According to Community Foods, Hildeburn's comments merely reflected past concern about Cassista's weight, and did not mean her weight played a role in Community Foods' decision to reject her employment application.   Although Hildeburn admits that he was initially worried that Cassista's weight would affect her job performance, he claims he later changed his mind, and ultimately rejected her employment application based upon criteria other than weight.

We find it difficult to interpret Hildeburn's remarks in this manner.   If Hildeburn's concerns about Cassista's weight had been alleviated, then why did he mention those concerns to Cassista?   What was the point?   Cassista asked how she could improve her employment prospects with Community Foods.   Hildeburn responded that there was “some concern” about her weight.   The obvious implication is that losing weight would enhance Cassista's employment prospects.   Given this context, Community Foods' explanation for Hildeburn's comments is simply not believable.

In addition, there was testimony that Hildeburn asked a friend, “Well, ․ if you had some people coming in, you know, several people coming in to apply for a job and three of them weighed about 150 and one of them weighed about 250, who would you hire?”   Again, if Hildeburn was no longer concerned about Cassista's weight, why did he make this remark?

 We conclude that this evidence established that it was more likely than not that weight played a motivating role in Community Foods' employment decision.   Thus, under the analysis utilized in Price Waterhouse, this case involved mixed motives.   Because the jury instructions did not conform to the Price Waterhouse analysis, the instructions were erroneous.   Once Cassista proved that she had a physical handicap, and that the handicap played a motivating role in Community Foods' employment decision, Community Foods was required to show, by a preponderance of the evidence, that its decision would have been the same even if Cassista's weight had not been considered.

 Shifting the burden to Community Foods in these circumstances furthers the statutory purpose of safeguarding the right of all persons to hold employment without being subject to discrimination.  (Gov.Code, § 12920;  see also American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal.3d 603, 186 Cal.Rptr. 345, 651 P.2d 1151.)   When an employment decision is based upon both legitimate and illegitimate reasons, then it has already been established that improper criteria affected the defendant's decision making.   Accordingly, in this situation, it is only fair that the defendant bear the risk of proving that it was not influenced by improper criteria.   As emphasized in Price Waterhouse, “if an employer allows gender to affect its decisionmaking [sic ] process, then it must carry the burden of justifying its ultimate decision.”  (Price Waterhouse v. Hopkins, supra, 490 U.S. at p. 248, 109 S.Ct. at p. 1789.)

Community Foods argues Price Waterhouse should not be followed because no other California case has relied upon it.   Community Foods cites a string of cases to support its argument.  (See e.g. Ewing v. Gill Industries, Inc. (1992) 3 Cal.App. 4th 601, 4 Cal.Rptr.2d 640;  County of Fresno v. Fair Employment & Housing Com., supra, 226 Cal.App.3d 1541, 277 Cal.Rptr. 557;  University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 272 Cal.Rptr. 264;  County of Alameda v. Fair Employment & Housing Com. (1984) 153 Cal.App.3d 499, 200 Cal.Rptr. 381.)   Since none of these cases involved mixed motives, it is not surprising that they do not rely upon Price Waterhouse.   Moreover, County of Alameda v. Fair Employment & Housing Com., supra, 153 Cal.App.3d 499, 200 Cal.Rptr. 381, was decided before Price Waterhouse.   In short, the absence of a Price Waterhouse fact pattern under California law does not diminish Price Waterhouse 's value as precedent.

Cassista argues that we should follow Dept. of Fair Employment and Housing v. Church's Fried Chicken (Jackson) (Aug. 16, 1990) FEHC DEC. No. 90–11.   In that case, the Fair Employment and Housing Commission decided that when a plaintiff shows discrimination, liability attaches.   Under this analysis, the defendant's affirmative defenses affect the plaintiff's remedy but do not affect the finding of liability.

Although this approach was rejected in Price Waterhouse, 109 S.Ct. at p. 1784, fn. 4, and p. 1795, the 1991 Civil Rights Act adopts it.  (See Title VII, § 703(m), 42 U.S.C. § 2000e–2(m), as added by the Civil Rights Act of 1991, § 107(a).)   Section 107 of the 1991 Civil Rights Act provides that an illegal employment practice is established by showing that race, color, religion, sex, or national origin was a motivating factor in the employment decision.   Even though the employer may demonstrate that it would have made the same decision absent the discriminatory reason, this showing does not negate the existence of a title VII violation.   It simply limits the available remedies:  the plaintiff is still eligible for declaratory and injunctive relief and attorney's fees and costs, but is not able to obtain damages or an order that he or she be hired, promoted, or reinstated.

We are unwilling to adopt this analysis.   There are several reasons for our conclusion.   First, we are not bound by the 1991 Federal Civil Rights Act and in these circumstances we do not believe it is either “practical” or “appropriate” to follow it.  (Cal.Code Regs., tit. 2, § 7285.1.)   Second, it is unclear whether the law applies retroactively.  (See e.g. Mozee v. American Commercial Marine Service Co. (7th Cir.1992) 963 F.2d 929, and cases cited therein.)   Several courts have concluded that it does not.   (Ibid.)  Finally, our state Legislature has not chosen to adopt a similar approach.   Unlike the United States Congress, the California Legislature has not amended its antidiscrimination law to specifically provide that liability attaches even if the defendant establishes an affirmative defense.

For these reasons, we hold that Price Waterhouse applies to mixed-motives discrimination cases brought under the FEHA.   In this case, the jury instructions violated Price Waterhouse by requiring that Cassista prove that “but for” her weight she would have been hired.

D. Prejudicial Error

 Having concluded that the jury instructions were erroneous, we must now consider whether the error was prejudicial and resulted in a miscarriage of justice.   If an error in jury instructions likely misleads the jury and affects its verdict, then the error is prejudicial and is grounds for reversal.  (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d at p. 670, 117 Cal.Rptr. 1, 527 P.2d 353;  see also Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1070, 232 Cal.Rptr. 528, 728 P.2d 1163.)

 Factors to be considered in determining whether prejudice exists are:  (1) the conflict in the evidence;  (2) the misleading effect of defendant's arguments to the jury;  (3) whether the jury asked that the instruction or related evidence be reread;  (4) the closeness of the jury's verdict;  and (5) whether other instructions might have remedied the error.   (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946;  see also Pool v. City of Oakland, supra, 42 Cal.3d at p. 1070, 232 Cal.Rptr. 528, 728 P.2d 1163.)

In determining whether the error is prejudicial, we must consider whether Community Foods would have made the same hiring decision had Cassista's weight not been considered.   If the evidence proves that it would have, then the error in jury instructions was not likely to have misled the jury or have affected its verdict.   To address this issue, we first review the affirmative defenses available to an employer accused of discriminating on the basis of physical handicap.   Analysis of the affirmative defenses will enable us to examine the legitimacy of Community Foods' reasons for denying Cassista employment.

 In certain situations, an employer may take a person's physical handicap into account.   For example, an employer may refuse to hire a handicapped person if the employer shows that, “after reasonable accommodation has been made, the applicant or employee cannot perform the essential job functions of the position in question because of his or her physical handicap.”  (Cal.Code Regs., tit. 2, § 7293.8, subd. (b).)

 In addition, employment practices based upon a bona fide occupational qualification (BFOQ) or based upon state or federal security regulations are excepted from the FEHA.  (Gov.Code, § 12940;  see also Sterling Transit Co. v. Fair Employment Practice Com., supra, 121 Cal.App.3d at p. 796, 175 Cal.Rptr. 548.)   The BFOQ defense was examined in Hegwer v. Board of Civil Service Comrs. (1992) 5 Cal.App.4th 1011, 7 Cal.Rptr.2d 389.   In that case, a female paramedic was suspended for being overweight.   On appeal, she argued that she was the victim of handicap discrimination.   Rejecting this contention, the court stressed that the employer's weight requirements were bona fide occupational qualifications:  “Here, the need for medically reasonable body fat and weight limitations for paramedics was supported not by stereotyped generalizations, but by statistical studies establishing that obesity decreases the strength, agility, endurance, and speed of EMS workers and increases the risks of job-related injury, heart disease, stroke, and high blood pressure.”  (Id. at p. 1025, 7 Cal.Rptr.2d 389, emphasis added.)

 Finally, employment decisions based upon health and safety concerns may constitute a defense to a discrimination claim.   An employer can refuse to hire a physically handicapped employee if “after reasonable accommodation has been made, the applicant or employee cannot perform the essential job functions in a manner which would not endanger” his or her health or safety or the health or safety of others.  (Cal.Code Regs., tit. 2, § 7293.8, subds. (c), (d).)   The health and safety defense was relied upon in McMillen v. Civil Service Com. (1992) 6 Cal.App.4th 125, 8 Cal.Rptr.2d 548.   In that case, a fireman alleged his employer discriminated against him based upon weight.   The court concluded that there was substantial evidence that the fireman's failure to meet the employer's weight standards endangered his health as well as the health and safety of others.

We next compare these affirmative defenses with Community Foods' reasons for denying Cassista employment.   Community Foods contends it rejected Cassista because her weight raised health and safety concerns.   Although this could be a valid reason, Community Foods must establish it was relied upon when Cassita's application was rejected.   In other words, Community Foods cannot belatedly claim Cassista's weight raised health and safety concerns and expect to satisfy its burden under Price Waterhouse.

Explaining this point, the court in Price Waterhouse opined, “[I]n most cases, the employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive.  [Fn. omitted.]   Moreover, proving ‘that the same decision would have been justified ․ is not the same as proving that the same decision would have been made.’  [Citations.]   An employer may not, in other words, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.”  (Price Waterhouse v. Hopkins, supra, 490 U.S. at p. 252, 109 S.Ct. at p. 1791, emphasis added.)

 After reviewing the record, we conclude that Community Foods failed to satisfy its burden.   There is no evidence the hiring committee considered health and safety concerns when they rejected Cassista's employment application.10  Although Hildeburn believed Cassista's weight would affect her “pace,” this concern is not the same as a health and safety defense.   Hildeburn was not anxious about Cassista's health;  he did not care about her safety;  he was simply worried that she would be unable to perform her job at the speed required.

 Does Hildeburn's concern about Cassista's pace constitute an affirmative defense?   As previously noted, an employer may establish that “after reasonable accommodation has been made, the applicant or employee cannot perform the essential job functions of the position in question because of his or her physical handicap.”  (Cal.Code Regs., tit. 2, § 7293.8, subd. (b).)  In this case, Hildeburn's anxiety about Cassista's pace was based upon nothing more than a stereotypical belief about the abilities of overweight people.   Hildeburn assumed Cassista's weight would prevent her from moving quickly.   He had no facts to support this assumption.   He did not test Casssita to see if she could handle the work;  he did not employ her for a probationary period to determine what her pace would be.   In short, he believed her weight was a physical handicap without having any factual basis for that belief.   This is discrimination.   It is precisely the type of conduct that the FEHA was enacted to prevent.

 Community Foods also attempts to justify its employment decision by claiming that the other applicants were more experienced.   Arguing that Cassista's inexperience disqualified her for the position, Community Foods relies upon the qualifications of the individuals selected for the three openings.   However, showing that these three individuals were more qualified than Cassista is not enough.   As previously noted, after three people were selected for the Community Foods' positions, another position became available.   Casssita asked Hildeburn to resubmit her application and he agreed.   When she did not hear from him, she telephoned to find out if she had been chosen for this fourth opening.   Hildeburn told her she had not been selected, and also stated that he had “some concern about her weight.”   Thus, Community Foods must offer proof about the fourth employee selected to prove its employment decision was based upon Cassista's inexperience, and not upon her weight.   No such evidence was presented.   Without evidence about this fourth employee, it is impossible to determine whether Cassista's inexperience was a factor in Community Foods' employment decision.

 Finally, there was also testimony that the hiring committee considered the fact that Cassista was “headstrong,” “opinionated,” and “forceful.”   However, this testimony does not satisfy Community Foods' burden.   First, Community Foods does not claim its hiring decision was based solely upon these reasons.   Second, “[A]n employer may not meet its burden in [a mixed-motives] case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason.   The very premise of a mixed-motives case is that a legitimate reason was present, ․  The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.”  (Price Waterhouse v. Hopkins, supra, 490 U.S. at p. 252, 109 S.Ct. at p. 1791–1792), (emphasis added.)

 We conclude that Community Foods has failed to make the requisite showing.   It has failed to prove, by a preponderance of the evidence, that legitimate reasons, standing alone, would have caused it to reject Cassista's employment application.   Given this failure, we believe the error in jury instructions was prejudicial.   In addition, during closing argument, Community Foods' counsel stressed the “but for” requirement and therefore contributed to the misleading effect.   Moreover, although the verdict was unanimous, there were no other jury instructions which might have remedied the error.   Accordingly, it is more probable than not that a different result would have been reached had the error not occurred.  (LeMons v. Regents of University of California, supra, 21 Cal.3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946;  see also Pool v. City of Oakland, supra, 42 Cal.3d 1051, 1070, 232 Cal.Rptr. 528, 728 P.2d 1163.)

E. Other Arguments

 Cassista argues that the testimony of Dr. Robert Liptai, the safety engineer, should not have been admitted.   As noted earlier, Liptai testified about the health and safety aspects of employing a 305–pound person at a store such as Community Foods.   We have already decided that the health and safety defense does not apply.   As previously discussed, the Community Foods hiring committee did not consider health and safety factors when rejecting Cassista's employment application.   For this reason, we conclude that Liptai's testimony was irrelevant and should not have been admitted.

Cassista also contends the jury instructions regarding the “reasonable accommodation” requirement were improper.   In particular, she argues that some of the instructions omitted the “reasonable accommodation” language, thereby erroneously setting forth the law.

 It is settled that instructions are to be considered as a whole.   “[T]he proper test is whether the instruction purports to state all the elements involved in the case and whether the omitted elements are covered by specific instructions elsewhere.  [Citations.]”  (Betero v. National General Corp. (1974) 13 Cal.3d 43, 58, 118 Cal.Rptr. 184, 529 P.2d 608.)   Indeed, the trial court instructed the jury, “Even if any matter is repeated or stated different ways in these instructions, I do not intend any emphasis upon it.   You must not single out any individual rule or instruction and ignore the others.   Instead, you must consider all the instructions as a whole and must regard each in light of the others.”

 In this case, the instructions detailed what reasonable accommodation meant.   Thus, even though the reasonable accommodation language was omitted from some of the instructions, this omission was of no consequence since the language was explained elsewhere.   When the instructions are viewed as a whole, we are convinced that any error was without prejudicial effect.

Conclusion

The trial court erred in instructing the jury that Cassista was required to prove that “but for” her weight, she would have been hired.   Because the error was prejudicial, the judgment is reversed and a new trial is granted.   Costs on appeal to Cassista.

FOOTNOTES

1.   For ease of reference, we shall refer to respondents simply as “Community Foods.”

2.   Various stories and articles about this incident appeared in local Santa Cruz publications.   In response to one of these articles, Hildeburn authored a story titled, “Experience, Not Weight, Is The Issue.”   Cassista herself appeared on a network television program, The Oprah Winfrey Show, to discuss her case and the issue of discrimination based upon weight.

3.   Government Code section 12921 provides, “The opportunity to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age is hereby recognized and declared to be a civil right.”

4.   Government Code section 12940 provides in pertinent part, “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the State of California:  [¶] (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions or privileges of employment.”

5.   A handicapped individual is “[a]ny individual who:  [¶] (1) Has a physical handicap which substantially limits one or more major life activities;  [¶] (2) Has a record of such a physical handicap;  or [¶] (3) Is regarded as having such a physical handicap.”  (Cal.Code Regs., tit. 2, § 7293.6, subd. (i).)

6.   A person “is regarded as having a physical handicap” if the person “(1) Has a physical handicap that does not in fact substantially limit one or more major life activities but is treated by an employer or other covered entity as having a physical handicap which does substantially limit major life activities;  or [¶] (2) Has a physical handicap that substantially limits one or more major life activities only as a result of the attitude of an employer or other covered entity toward such physical handicap;  or [¶] (3) Does not have a physical handicap that substantially limits one or more major life activities but is treated by an employer or other covered entity as having or having had a physical handicap that presently substantially limits major life activities;  or [¶] (4) Does not have a physical handicap that substantially limits one or more major life activities but is treated by an employer or other covered entity as having an increased likelihood of developing a physical handicap that substantially limits major life activities.”  (Cal.Code Regs., tit. 2, § 7293.6, subd. (h).)

7.   The jury was instructed, “The plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:  That the plaintiff is a handicapped person with [sic ] the meaning of the law, that but for the plaintiff's handicap she would have been hired by defendant, that defendant's failure to hire her because of her handicap status was a proximate cause of injury and damage to the plaintiff;  the nature and extent of the injuries claimed to have been so suffered and the elements of plaintiff's damages and amount thereof.   The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish:  That plaintiff, if employed as a ‘new worker’ at Community Foods, would be unable to perform her duties or could not perform those duties in a manner which would not endanger her health or safety or the health or safety of others.”  (Emphasis added.)

8.   Unlike the FEHA, title VII of the Federal Civil Rights Act does not prohibit discrimination based upon physical handicap.  (42 U.S.C. § 2000e et seq;  but see Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq [Purpose of ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”  (42 U.S.C. § 12101(b)(1).) ]   Title VII applies to discrimination based upon race, color, religion, sex, or national origin.   Even though it does not apply to discrimination based upon physical handicap, we do not believe that fact renders title VII analysis inapplicable.   As our court stated in Mixon v. Fair Employment & Housing Com. (1987) 192 Cal.App.3d 1306, 237 Cal.Rptr. 884, “While the California act and title VII differ in some particulars, their objectives are identical, and California courts have relied upon federal law to interpret analogous provisions of state statute.”  (Id. at p. 1316, 237 Cal.Rptr. 884.)   In addition, in Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 796, 175 Cal.Rptr. 548, the court relied upon title VII cases where the plaintiff alleged employment discrimination based upon physical handicap.   Finally, California Code of Regulations, title 2, section 7285.1, advises “[F]ederal laws and their interpretations regarding discrimination in employment and housing are not determinative of the construction of these rules and regulations and the California statutes which they interpret and implement but, in the spirit of comity, shall be considered to the extent practical and appropriate.”  (Emphasis added.)   We believe it is both practical and appropriate to consider title VII analysis.

9.   In Price Waterhouse, the court noted:  “Nothing in this opinion should be taken to suggest that a case must be correctly labeled as either a ‘pretext’ case or a ‘mixed motives' case from the beginning ․ indeed, we expect that plaintiffs often will allege, in the alternative, that their cases are both.   Discovery often will be necessary before the plaintiff can know whether both legitimate and illegitimate considerations played a part in the decision against her.   At some point in the proceedings, of course, the District Court must decide whether a particular case involves mixed motives.   If the plaintiff fails to satisfy the factfinder that it is more likely than not that a forbidden characteristic played a part in the employment decision, then she may prevail only if she proves, following Burdine, that the employer's stated reason for its decision is pretextual.”  (Id. at p. 247, fn. 12, 109 S.Ct. at p. 1789, fn. 12.)

10.   As previously noted, Hildeburn wrote a newspaper article entitled, “Experience, Not Weight, Is The Issue.”   The headline of this article contradicts Community Foods' claim that legitimate concerns about Cassista's weight, whether related to health, safety, or job performance, were a factor in Community Foods' decision-making process.

ELIA, Associate Justice.

CAPACCIOLI, Acting P.J., and PREMO, J., concur.