Disability Discrimination

The law provides certain legal protections for job applicants and employees with disabilities in California. However, in some cases it can be unclear to establish exactly what constitutes a disability, how employers can make the relevant accommodations, and what is considered disability discrimination under California law.

Employees in California are protected by two specific legislations, namely, California’s Fair Employment and Housing Act and the federal Americans with Disabilities Act. Other laws apply to to some employees, such as the federal Rehabilitation Act of 1973.

What is Disability and Disability Discrimination?

Disability is not a choice, but rather a reality that is part of the lives of many Californian employees. A disability can sometimes have an adverse effect on a person's employment, which is why it is important to know when such disability discrimination is unlawful.

Employees may be found guilty of disability discrimination when they mistreat someone due to their:

• mental impairment
• physical disability
• genetic condition, or
• medical condition.

To qualify for protection under the federal California ADA law, you must work for a company with fifteen or more employees, and you must be capable of performing the essential job functions included in your employment contract or as required by your employer. If you need a reasonable accommodation to do your job, your employer is legally obliged to provide it, unless it would be expensive or difficult.

The Act has standards as to what is considered a disability, and the kinds of accommodations that are considered reasonable. The U.S. Equal Employment Opportunity Commission (known as the EEOC), a federal agency that is responsible for administering federal laws governs workplace discrimination and partly enforces the ADA. It issues regulations and rules on complaints filed against employers. The EEOC may pursue actions against employers in federal court on behalf of disabled employees.

California's Fair Employment and Housing Act is the state's version of the federal Americans with Disabilities Act. The FEHA aims to eliminate discriminatory practices and provide remedies to employees in companies that employ more than five people. The FEHA is regulated by the Department of Fair Employment and Housing, which is usually an employee's first choice when it comes to filing complaints against their employers.

Both organizations aim to promote opportunities for individuals to pursue employment opportunities without fear of discrimination in spite of their perceived or actual medical conditions or disabilities. While the two different acts are essentially quite similar, disabled employees have access to more protection under FEHA. Additionally:

1. FEHA typically has a broader definition of disability than the ADA.
2. FEHA incorporates a broader definition of disability in situations where the definition is not broader, which means that it offers equal or more coverage than that of the ADA.
3. With the ADA, employees can only recover a limited amount of damages in a civil case. There is no limitation under the FEHA.
4. The ADA is applicable only to individuals who work for companies that employ more than fifteen employees. FEHA is applicable to companies that employ as few as five individuals. 
5. The FEHA imposes a broader obligation on employers to provide reasonable accommodations for employees with disabilities than the ADA.

By law, employers in California that fall in one of the following categories can be held liable for disability discrimination:

1. Companies or individuals who regularly employ five or more people,
2. Companies or individuals who act as agents for employers covered by the law,
3. Local or state government entities.

Religious non-profit associations or religious corporations are exempt.

California disability discrimination laws protect employees, job applicants, and independent contractors, however, exceptions apply to:

• employees who are also immediate family of the employer;
• volunteers and other unpaid workers;
• and nonprofit employees.

What is Disability Discrimination in the Workplace?

There are several ways in which employers can practice disability discrimination in the workplace, but the law specifically lists some actions in which employers may not engage. Employers may not:

• refuse to hire someone because of a disability;
• refuse to include a person in a training program that might potentially lead to employment due to their disability;
• pay an employee less than they would earn if they weren't disabled;
• terminate a person's employment because of his or her disability;
• place restrictions on job-related privileges, terms or conditions.

If a disability prevents an employee from performing the duties outlined in their employment contract, the employer must make reasonable accommodations that will enable them to meet their essential job functions. In some cases, an employee may still have rights, even if no reasonable accommodations are available in their current job. An employer's duty to make reasonable accommodations arises from the moment the employer becomes aware of the disability, unless it would cause the business undue hardship.

Reasonable Accommodations to Prevent Disability Discrimination in the Workplace

Reasonable accommodations are adjustments that enable the employee to perform essential job functions. The limitations of the disability and the job functions will determine the type of adjustment that is required. As can be expected, much debate usually surrounds the proposed accommodation and whether it is reasonable or not.

California courts are usually quite flexible in terms of reasonable accommodations. They encourage employers to consider all reasonable accommodations, unless it will lead to undue hardship. Likewise, employers have to take employee preferences into account in terms of selecting accommodations. Ultimately, discretion lies with the employer to select between two or more effective and reasonable accommodations.

Reasonable accommodations do not require that employers consider options that may prevent employees from performing essential job functions, nor do they have to accommodate disabilities that would endanger the health of the disabled employee or that of their co-workers.

In most cases, reasonable accommodations involve:

• improving the accessibility of existing facilities;
• restructuring an employees job function;
• reassigning the employee to a vacant position;
• alterations to the employee's schedule;
• changes to the way in which the individual performs job functions;
• allowing the individual to bring a service animal to work;
• permitting extended leave for an employee's treatment or recovery, as a last resort.

As an employee, you may reject your employer's offer of reasonable accommodation, and you are protected against retaliation.

Legal Disabilities

While California law prohibits employers, co-workers and clients from discriminating against employees due to their disabilities, not all psychological or physical issues are considered legal disabilities. Protections apply to employees who suffer from:

• medical conditions
• mental disabilities
• physical disabilities.

Similarly, one may not discriminate against an individual due to their genetic information, which typically falls under one of the categories above. The major difference therefore lies in the legal classification of the condition. Certain tests apply to each category and the result will determine whether the individual qualifies for protection.

Physical Disability in the Workplace

Anatomical losses, cosmetic disfigurement and other bodily conditions are considered physical disabilities. In order to qualify, the employee must show:

• Limited Life Activity - The employee' physical condition limits major life activities.
• Major Bodily System - At least one of the major bodily systems (endocrine, skin, lymphatic or hemic, genitourinary, digestive, reproductive, cardiovascular, speech, respiratory, sensory, musculoskeletal, immunological or neurological systems) or organs are affected by the condition.
• Physical Impairment - The employee suffers from a physiological disorder, disease or condition or has suffered a cosmetic disfigurement or anatomical loss.

Specific conditions are included as disabilities under California law:

• mobility impairments that require the use of wheelchairs and similar devices;
• episodic or chronic conditions, such as circulatory or heart disease, multiple sclerosis, diabetes, seizure disorder, epilepsy, hepatitis, and HIV/AIDS;
• missing limbs (complete or partial);
• cerebral palsy;
• blindness;
• and deafness.

Medical conditions are defined as genetic characteristics associated with health impairment or diseases related to cancer. These conditions are usually issues with employees who are at risk of future health impairment. Therefore, even if an employee is currently symptom-free, the employer may still discriminate against them.

The employee is considered legally disabled and entitled to protection due to his or her increased risk of future medical issues.

Mental disabilities usually limit major life activities and include:

• obsessive compulsive disorder
• post-traumatic stress disorder
• cognitive or intellectual disability
• autism spectrum disorders
• certain learning disabilities
• clinical depression
• mental and emotional illnesses
• schizophrenia

Employment Discrimination Due to Pregnancy and Obesity

California-based employers may not discriminate against employees due to pregnancy, whether she is disabled or not. As such, some pregnant employees are entitled to protection against discrimination for their pregnancy as well as pregnancy-related disability. Unless it would result in undue hardship for the employer, pregnant women who are disabled by their pregnancies are entitled to reasonable accommodations.

In some cases, employers will be required to grant the employee extended family leave, and sometimes, work conditions have to be modified to make work conditions more comfortable for the employee. The employee will have to be considered legally disabled and show that a major life activity has been limited by the pregnancy to qualify for these accommodations.

Obesity can only be treated as a disability if it is caused by a disorder that affects a body system, or by a physiological condition. In addition to being caused by something involuntary or physical, a person's obesity must limit major life activities.

Conditions Not Protected By the Disability Act

Temporary, mild conditions are not considered qualified disabilities, however, it may be considered on a case-by-case basis. These conditions typically have no long-term effects and include:

• headaches,
• colds and flu
• minor cuts and abrasions
• sprains
• bruises
• muscle aches
• minor, non-chronic gastrointestinal conditions.

Certain behavioural conditions may be considered mental disabilities, but they are specifically excluded from typical protections, including:

• voyeurism, exhibitionism, pediphilia and other sexual behavior disorders;
• unlawful substance abuse disorders;
• compulsive gambling;
• kleptomania;

California law does not consider transgender or transsexual presentation as sexual behavior disorders, but it does protect individuals' rights to dress or appear with their gender expression or identity.

The law also protects employees from discrimination due to the fact that their employers perceive (mistakenly or otherwise) them to suffer from a disability.

Disability Discrimination and Essential Job Functions

California regulations and statutes consider essential job functions as the duties that are fundamental to your employment, for example:

• The main reason for your employment is to perform the function in question;
• Your job function cannot be shared by other employees in the company;
• You function in a highly-specialized skilled function and you were specifically hired for your expertise.

Marginal functions, on the other hand, are not crucial to your job function and could either be performed differently or completed by another employee. If the employer would have to hire someone else to fulfill the job functions, it is essential. If it's unnecessary for the employer to hire someone else, the function can probably be considered marginal.

While almost all reasonable accommodations may be considered somewhat inconvenient, that alone does not exempt him from accommodating the employee's disability. Factors that will determine whether accommodations will cause undue hardship include:

• the cost and nature of the accommodation
• the likely impact of the accommodation on the business operation
• the size of the business
• the company's financial resources.

Unlawful Disability Discrimination in the Workplace

An employee is typically responsible for informing the employer about the condition, as this knowledge is critical to establishing unlawful disability discrimination. Your employer does not have to understand the legal significance of your condition, but you must inform them of how the condition will impact on your work. You must be clear and concise about these factors, ideally by submitting a written notice of your disability. This will help prevent confusion and the employer will not be able to deny knowledge of your condition or your need for accommodation.

When you are faced with disability discrimination in the workplace, know that you are not alone. A California employment attorney will be able to help you navigate the intricacies of your case and help you mediate the available remedies or litigate unfair dismissal, if need be.

Call 800-905-1856 today to schedule an initial case assessment with a licensed, experienced employment attorney who will recommend the best possible course of action for your specific needs.