By: Odell Law, PLC September 23, 2020

Have You Been Experiencing Disability Discrimination At Work?

California Law On Disability Discrimination

Under California’s Fair Employment and Housing Act (FEHA), it is against the law for an employer to discriminate against a person based on a physical or mental disability. This includes discrimination in the terms and conditions of employment, as well as refusing to hire a person or terminating them from their job. In addition, the Americans with Disabilities Act (ADA) prohibits employers from discriminating against job applicants and employees due to a disability.

These laws, as well as other anti-discrimination employment laws (such as Title VII of the Civil Rights Act of 1964), protect qualified individuals from disability discrimination. A “qualified individual” is a person who can perform the essential functions of their job, with or without a reasonable accommodation. If a person cannot perform the essential functions of their job — even with an accommodation, then they will not be covered under these laws.

For example: Consider Emily, a 25-year-old woman who suffers from epilepsy. Because of her condition, she cannot obtain a driver’s license. If she applies for a job as a school bus driver and is turned down due to her epilepsy and lack of a license, that would not be considered disability discrimination because Emily cannot perform the essential functions of that job, even with accommodations. However, if Emily applied to be a dispatcher for the same bus company and was rejected because of her disability, that may be discriminatory as she likely could perform that job with slight accommodations.

Discrimination may occur in a variety of different ways, such as:

Refusing to hire
Refusing to select a person for a training program
Firing an employee
Paying someone less than employees with similar positions
Demotion to a lesser or less desirable position
Denial of a promotion
Denying medical, dental, retirement or other benefits
Forcing an employee to quit (aka ”constructive discharge”)
Harassment
Taking away job duties or responsibilities

Under both federal and California law, employers are required to evaluate job applicants without regard for their actual or perceived disabilities. They also must provide a reasonable accommodation to an employee or applicant, unless it would cause undue hardship for the employer. Generally, this means significant difficulty or expense, and is evaluated based on a case-by-case basis.

While employers cannot ask about an applicant’s disability, they are permitted to ask whether a job applicant can perform the essential functions of a job. Similarly, employers cannot ask job applicants to take medical or psychological examinations unless all other prospective employees are required to take these exams, or if the exam is consistent with business necessity.

When it comes to disability discrimination, employers are liable for discrimination against both actual and perceived disabilities. This means that if an employer mistakenly believes that a job applicant or employee has a disability and discriminates them on that basis, then they are liable for disability discrimination.

What Disabilities Are Protected Under California Law?

The FEHA is meant to be interpreted as broadly as possible when it comes to the definition of disabilities. As such, the legal meaning of “disability” includes both mental and physical disabilities.

A mental disability includes, but is not limited to, any mental or psychological disorder or condition that limits a major life activity. These limitations are determined without looking to anything that may be used to treat the disability, such as medication, assistive technology, or an accommodation. Under California law, conditions such as bipolar disorder, anxiety disorder, schizophrenia, clinical depression, obsessive-compulsive disorder and learning disabilities are all considered disabilities. However, other types of impairments are not included in this definition, such as kleptomania, compulsive gambling, or impairment due to drugs and/or alcohol.

Physical disabilities include diseases and disfigurements that impact a person’s body and limit their ability to engage in major life activities. For example, loss of a limb, cancer, impaired eyesight, chronic disease, HIV/AIDS, hepatitis, and impaired hearing may all be considered physical disabilities.

In addition, the FEHA includes the ADA definition of physical and mental disabilities. Under the ADA, a person is considered to have a disability if they have:

A physical or mental impairment that substantially limits one or more of their major life activities;
A record of such an impairment; or
Being regarded as having such an impairment.

Under the FEHA and ADA, “major life activities” are also broadly construed and include things such as working, eating, sleeping, seeing, hearing, walking, standing, lifting, bending, performing manual tasks, speaking, breathing, caring for oneself, learning, concentrating, reading, communicating. In addition, major life activities includes the operation of major functions of the body such as the circulatory system, digestive system, or the respiratory system.

If any of your major life activities are limited due to a physical or mental impairment, then you will likely be considered to have a disability. As a result, you are entitled to protection under both federal and California law.

What Does Disability Discrimination Look Like?

In many cases, discrimination is subtle. A person may be passed over for a promotion, but their boss has a seemingly logical reason for it, such as another employee having more advanced skills in a certain area. Even when disability discrimination is not blatant, there are certain signs that may reveal a discriminatory intent.

For example, if Paul has been working at his employer for 10 years with great job reviews, and suddenly has negative performance reviews after taking time off for treatment for a newly-diagnosed disability, that may be a signal that he is being discriminated against on the basis of his disability. If he is also excluded from meetings and events, which makes it difficult for him to advance at work, it may be another sign that his employer is engaging in disability discrimination.

In other cases, disability discrimination is more obvious. If an employer mocks a person’s physical disability or fails to stop jokes or harassment related to disability, that may be a form of disability discrimination. Similarly, if an employer asks improper questions at interviews, like about a person’s medical condition or if they have a mental health diagnosis, that will likely be considered disability discrimination.

Can I File A Claim For Disability Discrimination In California?

If you have faced disability discrimination in the workplace, then you may be able to file a claim against your employer. This starts with filing a complaint with either the California Department Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC). Generally, California law is more favorable for employees, so it is often considered more advantageous to file with the DFEH.

This is the first step in the process. If you fail to file a complaint with the DFEH or the EEOC, then you cannot file a lawsuit against your employer for disability discrimination. There is a process by which your experienced employment law attorney can file a complaint with the DFEH and obtain a right to sue letter immediately. Otherwise, the complaint will proceed through the administrative process at either the DFEH or the EEOC.

Notably, California law has recently changed and now gives you up to three (3) years (from the last instance of discrimination – usually termination) to file a complaint with the DFEH or EEOC.

If you request an investigation rather than an immediate right to sue, a DFEH investigator will contact you and discuss the details of your case. From there, the complaint may be dismissed — giving you the right to sue your employer in court — or will move forward with the DFEH. At this stage, the DFEH will file a formal complaint against your employer. Importantly, if the DFEH dismisses your complaint, that does not mean that your case does not have merit. It is simply a reflection that the agency is not able to pursue it further, as is the case with the vast majority of matters that are submitted to them.

Once you receive a right to sue notice, you can file a lawsuit against your employer for unlawful discrimination within one (1) year. You may seek a range of damages based on the type of harm that you have suffered. This may include items such as:

Back pay
Higher income from a promotion or raise
Bonus payments
Benefits
Pension benefits
Pain and suffering
Emotional distress
Attorney’s fees
Court costs

In addition, you may also seek equitable remedies such as injunctions, which is when the court requires your employer to do or refrain from doing something. For example, the court may require your employer to hire you back if you were fired, or to provide a reasonable accommodation for your disability. Of course, this may not be something that you want, so it is best to consult with your lawyer before making a decision about this type of remedy.

Importantly, California employers are prohibited from retaliating against employees for reporting disability discrimination, even if they are ultimately wrong or mistaken about discrimination and even if the discrimination happened to another employee. If an employer retaliates against you for filing a complaint about discrimination, then you may have another legal claim against them for retaliation or wrongful termination.

Outdated beliefs about people with disabilities persist to this day. With or without accommodations, people with disabilities can perform many of the same jobs as people who do not have disabilities. Unfortunately, disability discrimination is all too common in California workplaces. If you believe you may have faced discrimination based on a disability, call us today at 949-771-8173 or email us at rob@odelllaw.com.