Millions of Americans with disabilities have jobs. Even if you do not presently have a disability, there is a good chance that you will develop one in your lifetime. According to a report from the Social Security Administration (SSA), more than 1 in 4 of 20-year-olds can expect to be out of work for at least a year due to a disabling condition.
Despite the growing awareness and acceptance of a range of both physical and mental health disabilities, too many people struggle to either be hired or to get the help that they need to effectively do their jobs. Under both federal and state law, however, employers are required to offer reasonable accommodations to both job seekers and current employees. If they fail to do so, then you may be able to file a lawsuit against them for disability discrimination.
Employment law can be complicated. An experienced disability discrimination attorney can advocate for you if you believe that you have been wrongfully denied a request for a reasonable accommodation. Read on to learn more about what a reasonable accommodation is — and your rights under California law.
What Is A “Disability” Under The Law?
First, it’s important to understand that the term “disability” has a different meaning under the law than what we would commonly use the term for. Under California law, a “disability” is any physical or psychological condition that limits a “major life activity” in any way.
This definition is purposefully broad and encompasses tens of thousands of possible conditions, not just major disorders. The law itself even states that “‘Major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.”
This means that (almost) any physical or psychological condition can qualify as a “disability” under the law as long as it has some limiting effect on your ability to work, sleep, walk, talk, eat, etc. There are some conditions (mostly temporary illnesses) that may not qualify as a disability, but one should consult with a disability discrimination attorney to be sure.
What Is A Reasonable Accommodation?
Under both state and federal law, qualified individuals are protected from workplace discrimination on the basis of their disability. A qualified individual is a person who can perform the essential functions of a particular job, with or without a reasonable accommodation.
Both the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) state that employers are required to provide “reasonable accommodations” for job applicants and employees who are unable to perform essential functions of a job due to their disability. Under these laws, a disability can either be mental or physical. A “reasonable accommodation” can include anything that would allow an employee to perform their essential job functions.
The specific type of reasonable accommodation that is necessary will depend on a number of factors, including the type of workplace and the employee’s specific disability. Examples of reasonable accommodations may include:
Providing a (finite) medical leave of absence;
Providing assistive technology to help an employee due their job (such as a screen reader for an employee with visual limitations or blindness);
Changing work schedules (such as allowing an employee to come in later if they have difficulty sleeping due to their disability);
Using part-time schedules;
Permitting employees to use service dogs or support animals at work;
Modifying the job application process;
Allowing an employee to transfer to a vacant position;
Changing training materials;
Providing readers or interpreters.
Importantly, employers are not required to provide reasonable accommodations to employees if it would cause undue hardship. This, however, requires more than an employer simply saying that providing a particular accommodation would cause undue hardship. Instead, the employer has to prove that a specific accommodation would cause significant difficulty and/or distress. This may be based on the nature and cost of the proposed accommodation, the financial resources of the company, the type of operation, and the impact of the accommodation on the facility as a whole.
This may come into play if we are dealing with a small employer and/or if the disabled employee is a high-ranking officer or director (i.e. a “key employee”) that the company cannot operate without.
Consider a small store that has just two employees scheduled per shift. One of the employees was recently diagnosed with Lyme Disease, and has requested to start working part-time instead of full-time to accommodate their disability and need for treatment. If the request is granted, then the workload of the other employee on the shift will increase significantly — beyond what they can reasonably accomplish on a shift. As a result, the store won’t be able to keep its shelves stocked, maintain adequate security, and provide appropriate customer service. In this situation, it may be an undue hardship to grant this reasonable accommodation.
However, if the same situation were to arise in a “big box” store with multiple or dozens of employees per shift, then accommodating one employee with part-time work due to their disability would not likely be an undue hardship. Here, the other employees could split the extra workload — and the store would be able to provide an equivalent level of service.
As these examples demonstrate, the question of whether an accommodation is reasonable will depend on the individual facts and circumstances of each case. As a general rule, the bigger the employer, the more difficult it will be to prove an undue hardship.
Understanding The Interactive Process
If an employee (or their doctor) requests an accommodation or the employer otherwise becomes aware of the need for a reasonable accommodation, then the employer is then obligated to participate in what’s known as a “good faith interactive process.” This involves communication between the employee and the employer about the nature of the problem that has led to the request, how the employee’s disability has promoted a need for an accommodation, and any alternative accommodations that may allow the disabled employee to perform their essential job duties.
In many cases, an employee triggers the interactive process by requesting an accommodation. However, an employer should start the interactive process without being asked if they:
Know that an employee has a disability;
Know, or have reason to know that the employee is experiencing challenges in the workplace because of their disability; and
Know, or have reason to know, that the disability prevents the employee from requesting a reasonable accommodation.
As part of the interactive process, an employer should evaluate the essential functions of the employee’s job. The employer and employee should then work together to determine the barriers that exist in performing a particular job function. The employer should identify a range of possible accommodations to remove that barrier or barriers. Finally, the employer should analyze the effectiveness of each accommodation, the preference of the employee, and whether an accommodation would present an undue hardship.
Notably, while the employee must participate in the interactive process, the law places the majority of the burden on the employer since they are typically in a much better position to evaluate and propose possible accommodations. This is especially true if the employer is a large, well-financed organization with a well-trained HR team that has gone through this process many times before.
In this way, an employer can work with a worker who requires a reasonable accommodation to find a solution to the issue at hand. Under both the ADA and the FEHA, it is unlawful for an employer to refuse to engage in an interactive process or to engage in a “sham” interactive process that is not “good faith” in nature.
In practice, the way that this should work is simple. If Mary is in a car accident that requires her to spend at least 6 months in a wheelchair, either Mary should request an accommodation, triggering the interactive process — or the employer should start the interactive process on their own if they learn of her condition. Mary and her boss can discuss how her use of a wheelchair presents barriers to doing some of her job functions, such as lifting and carrying heavy objects. They can then identify accommodations that will permit Mary to stay in her job, such as reassigning the parts of her job that require Mary to lift and carry heavy objects to another employee. In addition, Mary and her boss may determine that adaptations to her workstation or the building as a whole may be reasonable accommodations so that Mary can get into the building safely and continue to work. Alternatively, a finite medical leave of absence may be the most useful accommodation if it will be necessary to allow Mary to heal and return to work.
How Can I Request A Reasonable Accommodation?
If you have determined that you need a reasonable accommodation to perform your job — or that you need an accommodation in order to apply for a job — you can simply ask your employer to provide that accommodation. This request does not have to be in any particular form, such as in writing, and can use informal language. In other words, you do not have to mention any “magic words” like ADA or the FEHA or even use the phrase “reasonable accommodation” in your request. Still, it would be best to do so in writing.
You can ask for a reasonable accommodation simply by telling your employer that you are having an issue related to a disability. For example, if you are undergoing physical therapy because of back problems, and the only available appointments are in the morning, you can tell your supervisor that you are having trouble getting to work on time because of medical treatment that you are receiving. Even though you didn’t request a specific accommodation — or even use the word accommodation — this still qualifies as a request for a reasonable accommodation.
Similarly, if you tell your boss that you need to take time off to have surgery, this is a request for a reasonable accommodation. Your employer is then required to engage in the interactive process with you. If you tell your boss that the type of light bulbs used at your work station aggravate your eyes and trigger migraines, this is also a request for a reasonable accommodation.
However, if your request for an accommodation is not tied to a legitimate medical condition, then it may not be sufficient. In the physical therapy example above, if you don’t tell your boss that your lateness is due to medical treatment, then it isn’t a request for a reasonable accommodation. This is because simply saying that you are having trouble getting to work on time does not put the employer on notice that you are requesting an accommodation for your disability.
Of course, just because you request a reasonable accommodation does not mean that your employer is required to provide one to you. Through the interactive process, you and your employer will need to determine whether there is an appropriate accommodation for you — and then whether providing that accommodation will be an undue hardship for your employer.
Can I Sue If My Employer Doesn’t Provide A Reasonable Accommodation?
Under both the ADA and the FEHA, employers are required to provide reasonable accommodations to employees — and to not discriminate against employees or job applicants on the basis of a disability. If an employer fails to provide a reasonable accommodation or go through the interactive process, you may be able to file a lawsuit on the basis of disability discrimination.
Generally, you will be required to file a complaint with either the California Department of Fair Employment and Housing (DFEH) or the federal Equal Employment Opportunity Commission (EEOC) before you can file a lawsuit. You can request the agency that you file a complaint with to perform an investigation or you can request an immediate “right-to-sue” letter. With this letter, your disability discrimination attorney can file a lawsuit. It is advisable, however, to consult with a disability discrimination attorney before filing with the DFEH or EEOC, as their may be important claims you must include.
These types of cases are complex, and require you to follow the rules and meet the deadlines set forth by either the DFEH or the EEOC. For this reason, it is generally advisable to work with a lawyer if you want to sue your employer for failing to provide a reasonable accommodation.
If you do file a lawsuit, you may be entitled to monetary damages, such as back pay (with interest), lost future income and benefits, bonus payments, higher income from a raise or promotion, pain and suffering and emotional distress. You may also ask the court to order your employer to do something; this is known as an equitable remedy. For example, the court may order your employer to provide a reasonable accommodation for you. In addition, you can ask the court to order your employer to pay for your attorney’s fees and court costs.
Disability Discrimination At Work? We Can Help.
If you have a disability, you know firsthand how challenging it can be to get and keep a job — despite federal and state laws that are designed to protect against disability discrimination. You may not be aware of your rights — or you simply may not feel like you can assert your rights against your company. An experienced attorney can help you by investigating your claim, and filing a complaint and/or lawsuit on your behalf.
At Odell Law, we exclusively represent employees who have faced workplace injustice. Our firm is dedicated to helping people like you who have been treated unfairly or illegally at work. To learn more or to schedule a free phone consultation, call us at 949-833-7106 or email us at any time.
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Odell Law, PLC. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.